Allahabad High Court
Kuber Datt Dwivedi vs State Of U.P. And 2 Others on 2 March, 2023
Bench: Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - A No. - 3491 of 2023
Petitioner :- Kuber Datt Dwivedi
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Ashutosh Upadhyay
Counsel for Respondent :- C.S.C.,Ashok Kumar
Hon'ble Vikas Budhwar,J.
Heard Sri Ashutosh Upadhyaya, learned counsel for the petitioner, learned Standing Counsel as well as Sri Shiv Babu Dubey holding brief of Sri Ashok Kumar who appears for respondent Nos. 2 and 3.
The case of the writ petitioner is that his wife, namely, Chandralekha who was appointed as a teacher in Primary School Birraon died-in-harness on 06.03.2013. A copy of the death certificate is already on record as Annexure 1 at page 15 of the paper book. Relevant averment has been made in para 3 of the writ petition. It is the case of the writ petitioner that he had applied for release of death-cum-retirement gratuity. It is further the case of the writ petitioner that despite the fact that the petitioner had been representing the third respondent but no action whatsoever has been taken which compelled the writ petitioner to prefer Writ A No. 8774 of 2021 (Kuber Dutt Dwivedi Vs. State of U.P.) which came to be disposed of on 30.07.2021 with granting liberty to the writ petitioner to prefer a representation before the third respondent, Basic Education Officer, District Banda. Alleging non-compliance of the order of the writ court a contempt application (civil) No. 2601 of 2021, Kuber Dutt Dwivedi Vs. Sri Ram Pal Singh, District Basic Education Officer was preferred in which notices were issued. Now according to the writ petitioner the third respondent has proceeded to negate the claim of the writ petitioner for the grant of death-cum-retirement gratuity by virtue of the order dated 03.09.2022.
Prayer in the present petition is for a writ of certiorari calling for quashing of the order dated 03.09.2022 passed by the third respondent.
On 24.02.2023 this Court required the learned counsel for the second and third respondent to seek instructions as the counsel for the third respondent had made a statement at bar that the judgment relied upon by the writ petitioners stands applied and as a writ of certiorari is being sought thus, instructions were to be obtained as to whether the respondents seek to file any response or no.
Today when the matter has been taken up Sri Shiv Babu Dubey holding brief of Sri Ashok Kumar has appeared and produced the instructions dated 28.02.2023 of the third respondent Basic Education Officer, District Banda which comprises of as many as 9 pages according to which it has been mentioned, particularly, in paras 5 to 7 that the case of the writ petitioner stands covered in view of the Government Order dated 03.02.2023 as mere non-exercise of option to retire at 60 years (earlier 58 years) cannot be a ground to denude the writ petitioner from the benefits of death-cum-retirement gratuity. A statement has also been sought to be made by the counsel appearing for respondent Nos. 2 and 3 that they do not propose to file any response to the writ petition however, according to them, the writ petition be allowed while setting aside the order dated 03.09.2022 remitting the matter back to the third respondent to pass a fresh order in light of the law mandated by this Court.
I have heard the counsel for the parties and perused the record.
It is not in dispute between the parties that the writ petitioner was posted as Assistant Teacher in a Primary School Birraon which is governed by the provisions contained under U.P. Basic Education Act and she died-in-harness on 06.03.2013. Though in the order impugned as well as in the instructions was supplied today the date of death has been mentioned to be 26.09.2012 but in the instructions itself it has come that the date of the death is 06.03.2013. It is also not in dispute that the writ petitioner was made entitled to pensionary benefits but due to non-exercise of option to retire at 60 years (earlier 58 years) the claim for the grant of death-cum-retirement gratuity has been negated. Learned counsel for the parties are also not in dispute that the matter stands covered by the decision in the case in Writ A No. 17399 (Usha Rani Vs. State of U.P.) decided on 07.11.2019 as well as the Government Order dated 03.02.2023.
Considering the stand taken by the respondents that the writ petition be allowed the matter be set aside and remitted back to the third respondent without calling for any response, the order of third respondent dated 03.09.2022 is set aside matter is remitted back to the third respondent, Basic Education Officer, District Banda to pass a fresh reasoned order strictly in accordance with the decision in the case of Usha Rani (supra) in the Government Order dated 03.02.2023 within a period of six weeks from the date of production of the certified copy of the order.
Subject to the aforesaid observations, the writ petition is allowed.
Instructions filed today dated 28.02.2023 of the third respondent is retained on record and marked as 'X'.
Order Date :- 2.3.2023
Rajesh
