Allahabad High Court
Saroj vs State Of U.P. And 3 Others on 29 July, 2022
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 35
Case :- WRIT - A No. - 10953 of 2022
Petitioner :- Saroj
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Kamal Kumar Kesherwani
Counsel for Respondent :- C.S.C.,Bhola Nath Yadav
Hon'ble Vivek Varma,J.
Heard Sri Kamal Kumar Kesherwani, learned counsel for the petitioner, learned Standing Counsel for the State respondent nos. 1 and and Sri Bhola Nath Yadav, learned Counsel for the respondent nos.3 and 4.
Petitioner's husband was working as Head Master at Primary School Devpura, Block Nanauta, District Saharanpur. He died on 20.05.2004.
It is submitted that the petitioner being the legal successor applied for payment of retiral-cum-death benefits. The other benefits were released by the respondent no.3-District Basic Education Officer, Saharanpur. However, vide order dated 21.10.2020 the payment of gratuity amount was refused.
It is submitted that controversy involved in the present case has already been adjudicated by this Court in number of writ petitions. Reference can be had to the judgement of this Court in Writ Petition No.17399 of 2019 (Usha Rani vs. State of U.P. and others), decided on 7.11.2019. Relevant portion of the aforesaid order is extracted hereinafter:-
"............
Following the decision rendered in the judgment of Noor Jahan (Supra) as well as Smt. Omwati (Supra), matter of Smt. Brijesh (Supra) for payment of gratuity was allowed by this Court by quashing the impugned orders by which gratuity was denied.
Similar controversy was also decided by Lucknow Bench of this Court vide order dated 5.8.2019 passed in the matter of Smt. Mala Tripathi (Supra) in which Court has taken a similar view and held that if husband of petitioner died before attaining the age of 60 years and has not given option for retirement at the age of 60 years, gratuity cannot be denied only on this ground.
Relevant paragraph of the said judgement is quoted below:-
"Heard learned counsel for the contesting parties and perused the records.
From perusal of the records, it clearly comes out that the petitioner's husband died in harness on 26.08.2012 while working as Assistant Teacher in an aided and recognized institution. It is also admitted that the family pension has been paid to the petitioner. The only dispute revolves around the payment of gratuity to the petitioner. The ground taken by the respondents of the petitioner's husband not having opted for retiring at the age of 60 years which thus entails non-payment of gratuity to her at the very out set does not stand to legal scrutiny inasmuch as it is an admitted case by the respondents also that the petitioner's husband died in harness on 26.08.2012 despite his actual date of superannuation being November 2019. Thus, an employee is only expected to submit an option prior to his retirement and not decades prior to his retirement. However, this aspect of the matter has not been considered by the respondents and even the letter of the Institution dated 19.03.2014, a copy of which has been filed as Annexure-3 to the petition, does not address the aforesaid issue.
Accordingly, keeping in view the aforesaid discussions, the order dated 19.03.2014 (Annexure-3 to the petition) cannot be said to be valid in the eyes of law. As such, the writ petition deserves to be partly allowed and is hereby partly allowed. A writ of certiorari is issued quashing the order dated 19.03.2014. A writ of mandamus is issued directing the respondents to consider the case of the petitioner for payment of gratuity in accordance with law and relevant rules within a period of three months from the date of receipt of a certified copy of this order."
Facts of the case and dispute involved in the present case is squarely covered by the pronouncements made by this Court which are referred herein above, therefore, under such facts and circumstances, impugned order dated 30.7.2019 passed by respondent No. 7- Block Education Officer Block Kadarchauk, Distruict Badaun is hereby quashed.
Respondents are directed to compute the amount payable to the petitioner's husband towards gratuity in terms of the scheme and release the same, maximum within a period of three months from the date of production of certified copy of this order. ............"
Against the said judgement a Special Leave to Appeal (C) No (s). 19089/2021 was filed before the Hon'ble Apex Court. The said Special Leave to Appeal was dismissed on 29.04.2022. In view of the judgement in the case of Usha Rani (supra) the impugned order dated 21.10.2020 passed by the respondent no.3 cannot be sustained.
Learned Standing Counsel does not dispute the aforesaid fact that the special leave to appeal no. 19089/2021 was dismissed by the Hon'ble Apex Court. He submits that the matter may be remitted to the authority concerned, who will take appropriate decision in light of judgement in the case of Usha Rani (Supra) within a stipulated period.
Considering the facts and circumstances of the case, the order dated 21.10.2020 is hereby quashed. Liberty is accorded to the petitioner to make a fresh representation ventilating his grievance before the respondent no.3 within three weeks from today. In case the petitioner makes a fresh representation along with a certified copy of this order within the aforesaid period, the respondent no.3 shall consider the same and pass appropriate order in light of judgement in the case of Usha Rani (Supra), in accordance with law, within a period of three months thereafter.
It goes without saying that all consequential action shall be taken thereafter.
Accordingly, the writ petition stands disposed of.
Order Date :- 29.7.2022
Lbm/-
