Smt. Malti Devi vs State Of U.P. And 3 Others
2023 Latest Caselaw 5179 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - A No. - 1026 of 2023
 

 
Petitioner :- Smt. Malti Devi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- S B Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Prakash Padia,J.

The petitioner's husband since deceased Rampoojan Singh was appointed as Assistant Teacher in L.T. Grade on 24.09.1996 and while working in the institution he went missing since 08.10.2007 and inspite of considerable time when he was not traced out an FIR in this connection was lodged as Case Crime No.319 of 2015 at P.S. Kotwali, Rampur in which after investigation, police has filed closure report/final report about missing of Rampoojan Singh and same was accepted by the court on 26.09.2015. Thereafter petitioner filed a Civil Suit No.520 of 2016 (Smt. Malti Devi Vs. Praveen Singh and another) for declaring the civil death of the husband of the petitioner namely Rampoojan Singh. Vide order dated 07.08.2018 death of Rampoojan Singh was declared as civil death. After the aforesaid decree was passed, a death certificate was also issued by the competent authority stating date of death of the Rampoojan Singh on 07.08.2018.

It is argued by counsel for the petitioner that after his death representations were made by the wife of the deceased for payment of gratuity. On the said representation letter was written by the Regional Deputy Director of Education (Secondary) 12th Region, Moradabad to the District Inspector of Schools, Rampur dated 23.08.2022 to do the needful in the matter.

It is argued that identical controversy has already been decided by this Court in the bunch of cases being leading case Writ A No.8605 of 2022 (Guru Charan Vs. State of U.P. and 4 others) along-with connected matters on 04.08.2022.

In this view of the matter, it is argued that the respondents be directed to pass appropriate orders in the matter regarding payment of gratuity to the petitioner.

It is stated by learned Standing Counsel on behalf of respondent-State that respondent no.3 will take a decision in the matter expeditiously.

Heard learned counsel for the parties and perused the record.

The petitioner is claiming for payment of gratuity in terms of the law laid down in the case of Guru Charan (supra). Very recently a judgement dated 09.02.2023 was passed by the Hon'ble Apex Court in Civil Appeal No.3639 of 2022 (State of U.P. and others Vs. Priyanka) reported in 2023 LawSuit (SC) 107 which is quoted hereinbelow :-

"[1] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Allahabad in Special Appeal No. 343 of 2021 by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge directing the appellants ? State of U.P. and Ors. to pay the gratuity to the original writ petitioner on the death of the deceased employee (her husband), the State of U.P. and Ors. have preferred the present appeal.

[2] The facts leading to the present appeal in nutshell are as under:-

2.1 That the deceased employee Dr. Vinod Kumar, husband of the original writ petitioner, was working as Lecturer. He joined service on 02.07.2001 and died on 11.08.2009 while in service. The original writ petitioner - wife of the deceased employee applied for payment of gratuity due to her husband, but the same was rejected on the ground that the husband of the petitioner, while in service, had not opted for retirement at the age of 60 years. The original writ petitioner therefore filed the writ appeal before the High Court being Writ Appeal No. 2211 of 2021.

2.2 Relying upon and following the earlier decisions of the High Court and by observing that if the deceased employee would have been alive, he would have retired in 2026, if he had opted for retirement at the age of 60 years and before he could opt for retirement at the age of 60 years, he died, therefore, the learned Single Judge allowed the writ petition and directed the appellants to compute the amount payable to her husband towards gratuity quantified in accordance with the relevant Government orders with the interest @ 8% p.a. from the date of filing of the application for gratuity till the amount is actually disbursed, ignoring the fact that the husband of the original writ petitioner had not opted for retirement at the age of 60 years.

2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the appellants preferred the writ appeal before the Division Bench of the High Court. By the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal, hence the present appeal.

[3] Shri Sanjay Kumar Tyagi, learned counsel appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in directing the appellants to pay gratuity to the original writ petitioner on the death of the deceased employee.

3.1 It is submitted that the High Court has not properly appreciated the fact that the deceased employee failed to exercise the option and therefore the benefit of death-cum-retirement gratuity cannot be sanctioned to the respondent being heirs of the deceased employee.

3.2 It is further submitted that as per the prevailing government orders, the exercise of option to retire at the age of 58 years (now 60 years) for availing the benefit of death-cum-retirement gratuity was a mandatory exercise. It is submitted that therefore in the absence of any option exercised by the deceased employee, the High Court has materially erred in directing the appellants to grant the benefit of death-cum- retirement gratuity to the respondent on the death of the deceased employee.

[4] While opposing the present appeal, learned counsel appearing on behalf of the respondent ? heirs of the deceased employee has vehemently submitted that in the facts and circumstances of the case, no error has been committed by the High Court in granting the benefit of death-cum-retirement gratuity to the respondent on the death of the deceased employee.

4.1 It is submitted that the deceased was appointed as a Lecturer on 2.7.2001 and died while in service on 11.8.2009. It is submitted that before the deceased could exercise the option, unfortunately he died. It is submitted that as per the Government Order dated 16.09.2009, the deceased was entitled to exercise the option to retire at the age of 60 years which was available up to 01.07.2010, however, before he could exercise the option, unfortunately he died. It is submitted that therefore in the peculiar facts and circumstances of the case and taking note of the aforesaid facts, no error has been committed by the High Court in directing the appellants to grant the benefit of death-cum-retirement gratuity to the heirs of the deceased ? respondent herein. It is submitted that in the peculiar facts and circumstances of the case, the grant of benevolent scheme of gratuity by the learned Single Judge of the High Court, confirmed by the Division Bench, may not be interfered with.

[5] We have heard learned counsel for the respective parties at length.

At the outset, it is required to be noted that the date of birth of the deceased was 1.7.1951. He was appointed as a Lecturer on 2.7.2001. He would have completed 60 years of his age on 30.06.2011. As per Government Order dated 16.09.2009, he would have exercised his option to retire at the age of 60 years on or before 1.7.2010, However, before he could exercise the option, unfortunately he died. In fact, he had died even prior to the Government order. He had died on 11.08.2009 whereas the Government order is dated 16.9.2009. Therefore, there was no chance for him to exercise any option at all. There is hence no merit in this appeal.

The High Court has rightly observed that the respondent would be entitled to the benefit of the Government Order dated 16.9.2009 and would be entitled to the benefit of death-cum-retirement gratuity being the heirs of the deceased employee.

At this stage, it is required to be noted that it is not the case on behalf of the appellants that if the deceased employee would have exercised the option, even then he would not have been entitled to the benefit of death-cum-retirement gratuity under the scheme. The death- cum-retirement gratuity is the benevolent scheme and the same is extended to the respondent being heirs/dependent of the deceased employee by the learned Single Judge, confirmed by the Division Bench. In the facts and circumstances of the case, no interference of this Court is called for.

[6] In view of the above and for the reasons stated above, the present appeal fails and deserves to be dismissed and is accordingly dismissed.

We deprecate the practice of a State filing such cases before the Apex Court. Hence the appeal is dismissed with cost of Rs. 50,000/- payable by the appellant to the respondent within a period of four weeks from today."

In this view of the matter, Court is of the opinion that since law has already been settled by this Court as well as by the Hon'ble Apex Court as quoted above, the respondent no.3 is directed to take a decision in the matter expeditiously and preferably within a period of six weeks from the date of presentation of certified copy of this order.

Order Date :- 16.2.2023

Pramod Tripathi