Kedar Ram vs State Of U.P. And 4 Others
2022 Latest Caselaw 6445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 33
 

 
Case :- WRIT - A No. - 30536 of 2014
 
Petitioner :- Kedar Ram
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- V.K. Singh,J.P. Singh
 
Counsel for Respondent :- C.S.C.,B.P. Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard learned counsel for the petitioner and perused the record of the case.

None appears on behalf of B.S.A. although name of Mr. B.P. Singh, learned counsel for the B.S.A. has been shown in the cause list.

It is the case of the petitioner that he was working as Head Clerk in the Office of Sub Deputy Basic Education Officer, Azamgarh and retired on 31.3.2006 after attaining the age of 60 years. The petitioner had submitted his option to retire at the age of 60 years, therefore, he was covered under the Government Order dated 16.9.2009 which was issued accepting the recommendation of the Pay Commission revising the rates of pension/gratuity/family pension and commutation of pension in relation to teachers and employees of the Basic Education Board retiring on 01.01.2006 or thereafter. Paragraph 4(1) of the said government order provides that such teaching/non-teaching employees who retired before completing 10 years of qualifying service though not entitled to get pension like government servants, would be entitled to receive gratuity, if they retired on attaining the age of 60 years. Paragraph 4(4) of Government Order dated 16.09.2009 clarifies that teaching/non-teaching employees who retired on 1.1.2006 or thereafter would be governed by Pension Rules which were applicable before the issuance of the Government Order dated 16.9.2009. Before such Government Order dated 16.9.2009 was issued, there was Government order dated 30.7.2007 which sanctioned benefit of gratuity to those working/left out non-teaching staff of different offices of the Basic Education Board who had retired at the age of 60 years. The Government had decided to extend the benefit of gratuity to all working/left out non-teaching staff who had opted for retirement at the age of 60 years.

It has been argued that the petitioner's claim for gratuity was not accepted by the Finance Controller. The petitioner, aggrieved thereby, filed petition bearing Writ-A No. 69236 of 2013 (Kedar Ram Vs. State of U.P. and another) which was disposed of by a Co-ordinate Bench of this Court vide order dated 17.12.2013 with a direction to the Competent Authority to consider and decide the petitioner's representation by a speaking order. The Finance Controller, Basic Education Board had earlier given certain directions to the Finance and Accounts Officer but then decided the case of the petitioner himself. It has been mentioned in the order dated 17.2.2014, challenged in this petition, that the petitioner had retired as Head Clerk on 31.3.2006 and pension for the said post was to be approved by the Assistant Basic Education, Director, but since the representation had been made to the Finance Controller a direction was issued by the High Court to the Finance Controller for taking decision on the representation of the petitioner. The petitioner was heard personally on 27.1.2014, and he had based his claim upon Government Order No. 1754/79-5-09-02/2009 of Shiksha Anubhag-5 dated 16.9.2009. The Finance Controller in his order stated that such order dated 16.9.2009 is not a Government Order. It is a Circular/ Office Order issued by the Shiksha Anubhag-5 for revision of rates of pension/gratuity/family pension and commutation of pension.

The case of the petitioner is governed by Government Order dated 30.7.2007 which refers to the remaining/left out employees of the Board and who had retired at the age of 60 years and extended the benefit of pension/gratuity to them but such Government Order become applicable only with effect from 30.07.2007 and the petitioner had retired on 31.03.2006 much before issuance of the Government Order dated 30.7.2007, as a result of which, gratuity is not payable to the petitioner. The Office Order/Circular dated 16.9.2009 did not create any substantive rights in favour of the employees for getting gratuity. It only revised the rates of pension/ family pension/ commutation/ gratuity etc.

It is the case of the Respondents that an employee who retired before Government Order dated 30.07.2007, like the petitioner herein (which made gratuity applicable/admissible to employees of the Basic Education Board) and which government order is thus, prospective in its effect, could not be given to the petitioner.

It is the case of the petitioner that the order dated 16.09.2009 has been wrongly referred to by the Finance Controller as an Office Order issued by Shiksha Anubhag-5. This is in violation of observations made by this Court in its various judgments which have referred to the Government Order dated 16.09.2009 and had given benefit of such government order to the employees for family pension.

Learned counsel for the petitioner has placed reliance upon a judgment passed by a Co-ordinate Bench of this Court in Writ-A No. 40568 of 2016 (Noor Jahan Vs. State of U.P. And 4 others). He has also referred to a judgment in Writ-A No. 17399 of 2019 (Usha Rani Vs. State of U.P. and 6 others) passed by a Co-ordinate Bench of this Court decided on 07.11.2019. Against such an order passed by the Single Judge, a Special Appeal Defective No. 40 of 2021 (State of U.P and 6 others Vs. Usha Rani) was filed which was also disposed of vide order dated 28.01.2021. Learned counsel for the petitioner has also placed reliance upon order passed in Writ-A No. 5108 of 2021 (Prem Kumari Vs. State of U.P. And 7 others) decided on 08.07.2020, wherein reliance was placed upon the case of Usha Rani (supra).

It has been submitted by learned counsel for the petitioner that this Court has held in its various judgments as cited hereinabove that the Government Order dated 16.09.2009 provides for revision of pension and other retiral benefits to the retired employees of the Department of Basic Education Board granting higher benefits with effect from 01.01.2006. It had also observed that although pension would not be available to those employees who had not completed 10 years of qualifying service but such employees who retired after attaining the age of 60 years shall be entitled to gratuity and other retiral benefits.

It is the case of the petitioner that the petitioner had retired after attaining the age of 60 years and that he had given an option in this regard, therefore, it cannot be said that government order dated 16.9.2009 is not applicable to him.

This Court has carefully perused the judgment of this Court rendered in Noor Jahan (supra) and finds that the question decided by this Court related to admissibility of family pension to the petitioner whose husband had died at the age of 57 years, i.e., before completing the age of 60 years. The Circular/ Office Order dated 16.09.2009 was interpreted strictly by the State-respondents and gratuity was not given to her. The Court had clarified that under Clause 5 of the said Order, gratuity would be payable to an employee who did not complete qualifying ten years of service and died early, therefore, she would still be entitled for getting some retiral gratuity as per the Office Order dated 16.09.2009.

It is evident from the judgment rendered in Noor Jahan (supra) that there was no issue framed with regard to whether gratuity would be admissible as per the Government Order dated 30.7.2007 or the Office Order dated 16.09.2009. The Court had assumed that the Office Order issued by Shiksha Anubhag-5 is a Government Order making death-cum-retirement gratuity and other retiral benefits admissible as per revised rates to retired employees/dependants of such employees of the Department of Basic Education Board.

This Court has also considered the judgment rendered in the case of Usha Rani (supra) where reference has been made to several judgments passed by Co-ordinate Benches of this Court making admissible payment of gratuity as per the Office Order dated 16.9.2009 to such employees who had not given option for retirement at the age of 60 years, by placing reliance upon judgment rendered in Noor Jahan's case. The Court observed that even if the daughter of the petitioner therein had died during course of service before completing the age of 60 years, the mother would be entitled to get death-cum-retirement gratuity as was admissible to her daughter. Gratuity could not be denied only on the ground that the employee concerned had died before attaining the age of 60 years.

In the Special Appeal filed by the State of U.P., the Division Bench was of the opinion that as per the Office Order dated 16.07.2009, the employees who had given the option to continue in service beyond the normal age of superannuation of 58 years and for extension of service with the condition that gratuity would be denied to such employees would shall be given gratuity as this Court in the case of Smt. Ranjana Kakkad Vs. State of U.P. and others reported in 2008 (10) ADJ 63 had extended the benefit of gratuity to such employees.

In the case of Prem Kumari (supra) also, the judgment rendered by a Co-ordinate Bench of this Court in the case of Usha Rani (supra) was relied upon. The writ petitioner's husband had died before completing the age of 60 years. Similar is the case of Sarwasti Gupta Vs. State of U.P. And 5 others in Writ-A No. 2948 of 2021, decided on 16.09.2021 where respondents had denied the gratuity of petitioner's husband on the ground that the husband of the petitioner had not opted for retirement at the age of 60 years and had died before reaching his age of superannuation.

All the judgments cited by the learned counsel for the petitioner rendered by Co-ordinate Benches of this Court have referred to the Office Order issued by Shiksha Anubhag-5 as a Government Order. However, no issue with regard to whether it is a Government Order or Circular or Office Order had been framed by any of the Co-ordinate Benches. The only question the Co-ordinate Benches had considered was if an employee dies before attaining the age of 60 years, or if an employee retires without giving option as required in the Government Order, whether he or his dependants would be entitled to any gratuity.

In the case of the petitioner he had given an option for extension and he was allowed to work till he attained the age of 60 years and retired thereafter.

Now, this Court has to consider the contention raised by the Respondents in the counter affidavit that the facility of gratuity in favour of the employees like the petitioner had been introduced for the first time by the Government Order dated 30.7.2007. It was made operative with immediate effect and would not be applicable to such employees as the petitioner who had retired prior to the issuance of the said Government Order.

This court has considered the language of Office Order dated 16.09.2009 which has been issued by the Shiksha Anubhag-5 informing of the Government's decision to accept the recommendations of the Pay Committee, 2008 for revision of rates of pension of teaching and non-teaching staff and their gratuity/family pension and commutation of pension. It has referred to revision of rates of pension/family pension, gratuity and commutation of pension as applicable to those employees who had already been made entitled to such facility and it gives the revised rates with effect from 01.07.2006. It also refers to such cases where teaching and non-teaching staff had already been assigned pension/family pension/death-cum-retiral gratuity-cum-commutation of pension at rates which were higher than the revised rates as notified in the Office Order dated 16.09.2009 and says that in such cases revision shall not be done to the detriment of the employee concerned. It refers to detailed procedure as to how pension has to be fixed on the basis of emoluments last drawn by an employee. It also gives the method of calculating emoluments on revised rates. In Clause 4(1) of the said Office Order, mention has also been made of such teaching and non-teaching staff who had retired before completing 10 years of qualifying service being not entitled to pension but at the same time, says that such employees would still be entitled to revised rates of gratuity under the extant Rules. It also refers to reduction in the minimum qualifying service for getting full pension from 33 years to 20 years. Clause 4(4) of the said Office Order, referring to Clauses 4(2) and 4(3), states that such facility would be available to teaching and non-teaching staff who had retired on 1.1.2006 or thereafter. Those who had retired before 1.1.2006, would get pension/family pension/gratuity and commutation of pension at the rates that were admissible before the issuance of the said order.

This Court after careful perusal of Office Order dated 16.09.2009 finds that indeed it refers only to revision of rates and how the emoluments are to be calculated for grant of benefit of such revised rates. It does not decide entitlement. The Government Order dated 30.7.2007 issued by the Principal Secretary, Government of U.P. decides entitlement towards gratuity and it refers to such employees who had been left out from being given such facility of gratuity earlier. It was decided by the Government to extend the facility of gratuity to such employees on their retirement but such facility was extended only with prospective effect.

Having heard the learned counsel for the petitioner and having perused the entire material available on record, this Court finds no good ground to show interference in the order passed by the Finance Controller dated 17.2.2014 at this stage but leaves it open to the petitioner to approach this Court challenging the Government Order dated 30.7.2007 or any other Government Order which decides the entitlement of the petitioner to get service gratuity by filing a fresh writ petition in this regard.

The petition stands disposed off accordingly.

Order Date :- 11.7.2022/CS/-