Allahabad High Court
Smt. Vinita Srivastava vs State Of U.P. Thru. Addl. Chief ... on 20 October, 2022
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- WRIT - A No. - 6908 of 2022
Petitioner :- Smt. Vinita Srivastava
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Madhyamik Education And 5 Others
Counsel for Petitioner :- Anurag Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Rajnish Kumar,J.
Supplementary affidavit filed by the petitioner is taken on record.
Heard, Shri Anurag Srivastava, learned counsel for the petitioner and Ms.Parul Bajpai, learned Standing Counsel.
Considering the nature of order proposed to be passed issuance of notice to opposite party no.6 is dispensed with.
Learned counsel for the petitioner submits that the husband of the petitioner, who was working on the post of Assistant Teacher in B.N.Lal Vocational Inter College, Singar Nagar, Alambagh, Lucknow had died on 09.04.2021 at the age of 56 years, 7 months and 20 days. Therefore the petitioner is entitled for payment of gratuity payable to him vide Government Order dated 6th of October 1990 issued in pursuance of Government Order dated 31st of March, 1978, 28th of July, 1978 and 3rd of November, 1978, by which the period of exercising the option for retirement at the age of 58 years was extended and there was a deeming clause that who did not exercise option in the said period of 90 days it would be deemed that they have submitted the option. Now the age of retirement has been enhanced from 60 years to 62 years. Since the husband of the petitioner had died prior to crossing of age of 58 years, therefore, occasion for submitting his option for retirement at the age of 58 years did not arise as he died at the age of 56 year and odd. He further submits that in identical circumstances by means of judgment and order dated 21.06.2022 passed by a Coordinate Bench of this court in a Bunch of Writ Petitions leading of which is Writ-A No.14575 of 2021; Shikha Sharma Widow Versus State of U.P. and 3 others this court has directed to make payment of gratuity to the petitioner therein alongwith interest at the rate of 8% per annum. The Coordinate Bench in paragraph 12 has held as under:-
"12. Considering the fact that the State Government by the aforesaid Government Order dated 06.10.1990 provided for a deeming clause of acceptance of option of retirement at the age of 58 years from all the teachers, who did not exercised an option, there does not appears to be any fault on the part of the deceased husband of the petitioner. No Government Order, amendment in instructions or rules have been brought on record which restores the position prevailing prior to the Government Order dated 06.10.1990. Therefore, it is clear that even the teachers who did not exercised their option to retire at the age of 58 years would not be deprived of benefit of gratuity only because the deceased did not exercise the option of retirement at the age of 58 years. Further reason is that it was open for the deceased to change his option as per subsequently issued government order a year before the date of superannuation but his/her untimely death robbed him/her of the opportunity."
Learned Standing Counsel does not dispute the submissions of learned counsel for the petitioner. However, she submits that the claim of the petitioner shall be considered by the competent authority i.e. respondent no.5.
In view of above, the writ petition is disposed of with direction to respondent no.5 to consider the claim of the petitioner and dispose of the representation of the petitioner by a speaking and reasoned order within a period of three months from the date of production of a certified copy of this order.
Liberty is granted to the petitioner to move a fresh representation alongwith a certified copy of this order.
The consequences shall follow accordingly as per law.
.
............................................(Rajnish Kumar,J.)
Order Date :- 20.10.2022
Banswar
