State Of U.P. Thru. Prin. Secy. Rural ... vs Yogesh Srivastava
2025 Latest Caselaw 12865 ALL

Allahabad High Court

State Of U.P. Thru. Prin. Secy. Rural ... vs Yogesh Srivastava on 21 November, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:76299-DB
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
SPECIAL APPEAL DEFECTIVE No. - 363 of 2023   
 
   State of U.P. Thru. Prin. Secy. Rural Development, Civil Secrt. Lko. and another    
 
  .....Appellant(s)   
 
 Versus  
 
   Yogesh Srivastava    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Mohit Jauhari (S.C.)   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Vijay Kumar Srivastava   
 
     
 
 Chief Justice's Court
 
           
 
  HON'BLE ARUN BHANSALI, CHIEF JUSTICE   
 
    HON'BLE JASPREET SINGH, J.        

1. This appeal is directed against order dated 19.01.2023 passed in Writ-A No. 20267 of 2020 whereby the learned Single Judge has set aside the order dated 17.09.2020 passed by the appellants whereby application filed by the respondent for grant of gratuity from 05.10.1985 to 11.11.1999 was refused.

2. The appeal is barred by 96 days. An application under Section 5 of the Limitation Act, seeking condonation of delay, has been filed.

3. For the reasons indicated in the application supported by an affidavit, the delay in filing the appeal is condoned. The application is, accordingly, disposed of.

4. The respondent was accorded appointment as Junior Accountant Clerk by order dated 30.09.1985 issued by the District Magistrate/Chairman, District Rural Development Authority, Faizabad. It was inter alia indicated in the order that the respondent was selected pursuant to government order dated 18.05.1985 for being appointed to District Rural Development Agency (DRDA) under the National Rural Employment Programme (NREP) in the pay-scale of 354-550. It was indicated that the appointment was temporary and the post is that of DRDA which is not a government post.

5. It appears that the respondent continued to discharge his services as Junior Accountant Clerk in NREP in different blocks till 12.11.1999. When he was appointed on the post of Statistical Assistant in the pay-scale of 1600-2600 from where he retired on 31.07.2020.

6. On retirement when he was not paid gratuity for the period 05.10.1985 to 11.11.1999, he filed Writ Petition No. 10625 (S/S) of 2020 which was decided on 09.07.2020 requiring the appellants to decide the representation. The representation was rejected on 17.09.2020 relying on government order dated 18.07.2016 whereby the services of those working with DRDA were merged with the government service by indicating that prior to that there was no reason to take into consideration the services rendered with DRDA which is a registered Society and consequently rejected the representation.

7. Feeling aggrieved, the present writ petition has been filed, which as noticed hereinbefore, was allowed by the learned Single Judge.

8. Counsel for the appellants made submissions that in the order of appointment, it was specifically indicated that the respondent has been appointed at DRDA which is not a government post and once the said indication was made at the time of appointment and only in the year 2016, the merger of those working with DRDA with government took place, the claim made for grant of gratuity for the period 05.10.1985 to 11.11.1999 had no substance. Reliance was also placed on the government circular dated 18.07.2016 whereby the services of those working with DRDA were merged with the State Government.

9. Counsel for the respondent contested the submissions. It was submitted that the entire plea sought to be raised is baseless. The appointment order made a reference to government order dated 18.05.1985 under which the appointments were made wherein it was specifically indicated that 887 posts of Junior Accountant Clerks were created for working under the NREP and once the appointment was granted pursuant to the said order, the indication made in the order that the same was not government post, was absolutely superfluous. Further submissions have been made that in the year 2020, another government order dated 23.03.2020 has been issued clearly providing for grant of gratuity for the services rendered with DRDA and, therefore, the plea raised in this regard apparently has no substance and the appeal therefore deserves to be dismissed.

10. We have considered the submissions made and have perused the material available on record.

11. Apparently, the plea sought to be raised by the appellants is baseless and no more res integra inasmuch this Court in Bhaskar Bhattacharya vs. State of U.P. and 3 others : Writ-A No. 678 of 2018, decided on 06.04.2018, after examining the relevant government orders, proceeded to observe as under:

"The submission of the learned counsel for the petitioner has force. The claim of the petitioners who were undisputedly employees of the DRDA, a Society registered under the Societies Registration Act, 1860 had been duly adjudicated by this court in W.P. No. 21610 of 2010 (Yogendra Nath Singh Vs. State of U.P. and others) which stood confirmed in the judgement of the Division Bench of this court in Special Appeal (D) No. 456 of 2015 vide judgement dated 7.7.2015 and therefore the benefit which became due to the petitioners under the judgments of the court cannot be undone or denied to them by introducing the G.O. dated 18.7.2016. Even otherwise the G.O. dated 18.7.2016 cannot over ride the statutory Rules framed under the U.P. Retirement Benefit Rules, 1961. The law is well settled that Rules cannot override the provisions of an Act and likewise orders or notifications cannot over ride the effect of statutory Rules.

The learned standing counsel has also passed on to the court copy of the Government Order dated 8.10.2016 and submits that this G.O. Provides a cutoff date of 1.4.2005 for grant of benefit of gratuity and other retiral dues.

I have examined this G.O. Dated 8.10.2016 and I find that it supports the claim of the petitioners rather that defeat the same. This Government Order provides that the benefit of the Rules 1961 for grant of granting and other retiral benefits shall apply to employees of Government aided educational institutions as well as self managed institutions including those to whom the pre-1.4.2005 pension scheme was applicable. In my view this Government Order does not in any manner deny the claim of the petitioners of gratuity and other retiral benefits.

For reasons aforesaid, the petitioners are entitled for payment of gratuity in terms of the direction given by the Division Bench of this court in Special Appeal No. 456 of 2015 and accordingly a mandamus is issued to the respondents to release the arrears of gratuity to the petitioners within a period of two months from the date of receipt of a certified copy of this order.

The above writ petition stand allowed."

12. The State preferred appeal against the aforesaid judgement which was dismissed on 19.07.2018 with the following observations:

"This appeal is before us to examine correctness of the judgment dated 06.04.2018 passed by learned Single Bench in Writ-A No. 678 of 2018 and other connected matters.

Succinctly, facts of the case are that respondent-petitioner entered in service of District Rural Development Agency, Sitapur (hereinafter referred to as "DRDA") in the year 1985. On attaining the age of superannuation, he came to retire from service on 31.07.2017. At the time of superannuation from service, respondent-petitioner was holding the post of Accountant. Government of Uttar Pradesh under an order dated 18.07.2016 absorbed the employees of DRDA who were recruited directly with the services of the DRDA. As per the order aforesaid, their absorption was treated as "deputation (pratiniyukti)". Prior to that, while Sri Yogendra Nath Singh, an employee of DRDA, preferred a petition for writ bearing Nos. 21610 of 2010 to have an appropriate writ, order or direction for payment of gratuity to the employees of DRDA in light of a Notification dated 06.09.1997, the petition for writ aforesaid came to be allowed on 12.02.2015. The writ Court while accepting the writ petition directed the respondents including the State of Uttar Pradesh to make payment of gratuity to the petitioner to the employees of DRDA in light of the Notification dated 06.09.1997 issued by the Central Government.

The appeal bearing No. Special Appeal (D) No. 456 of 2015 giving challenge to the judgment passed by the writ Court came to be disposed of on 07.07.2015 by clarifying that the mandamus issued shall operate only against District Development Rural Agency of which the petitioner in the writ petition aforesaid was an employee. Respondent-petitioner after his retirement claimed for release of gratuity but that was denied on the count that after absorption in the services of Rural Development Department, he shall not be entitled for any benefit relating to the earlier services.

Learned Single Bench after considering the entire issue arrived at the conclusion that the Government Order dated 08.10.2016, as a matter of fact, supports claim of the respondent-petitioner and that provides the benefits of U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") to award post-retiral benefits to the employees of Government Aided Educational Institutions as well as self-managed institutions including those to whom the pre-01.04.2005 pension scheme was applicable.

In appeal, the argument advanced is that officers/employees working with DRDA were given an option for merger of their services in the Rural Development Department with clear understanding that they have to give an option for merger of their services with undertaking that their services in the Rural Development Department shall not be eligible for pension, gratuity, etc. have to be taken into consideration.

We do not find any merit in the arguments advanced.

A perusal of the order dated 06.10.2016 available on record at Page 145 of Special Appeal (D) No. 421 of 2018 clearly indicates that Government of Uttar Pradesh decided to allow retirement gratuity and death gratuity to the employees even for the persons governed by National Pension Scheme introduced on 01.04.2015.

In light of the order aforesaid, it cannot be said that on acceptance of National Pension Scheme of 2005, the respondent-petitioner was not entitled to have gratuity which is otherwise available to the persons covered by the Rules, 1961. We would also like to state that so far as undertakings sought from the employees of DRDA with regard to withdrawal of their rights already created is also not sustainable in the eye of law as that virtually amounts to undoning the rights settled by a writ Court those were also affirmed by a Division Bench. Such settled rights could have not been undone by administrative fiat.

In view of above, we do not find any just reason to interfere with the order of learned Single Bench.

The appeals, hence, are dismissed."

13. Subsequent thereto, another writ petition, i.e. Writ-A No. 13371 of 2019 (Sattar Khan vs. State of U.P. and 3 others) came to be decided on 14.10.2019, wherein it was inter alia observed and directed as under:

?5. Payment of gratuity to an employee is not dependent upon his absorption nor its benefit can be restricted only for the period after the employee concerned has been absorbed substantively in the employment of State. Section 2(e) of the Payment of Gratuity Act, 1972 (hereinafter referred to as ''the Act of 1972') defines an employee as being a person (other than an apprentice) employed on wages in any establishment etc. Section 4 of the Act of 1972 provides for payment of gratuity to an employee on his superannuation if he has rendered continuous service for not less than five years. Continuous service has also been defined in Section 2-A of the Act of 1972. The rate at which gratuity becomes payable for each year of completed service is also prescribed. The scheme under the Act nowhere suggests that only a regular employee alone would be entitled to payment of gratuity. Sub-Clause (2) of Section 2-A of the Act of 1972 clearly provides that for every period of one year during which the employee has completed requisite number of days of service he would be entitled to payment of gratuity.

6. This Court in the case of Yogendra Nath Singh Vs. State of U.P. and others, W.P. No. 21610 of 2010 as affirmed in Special Appeal Defective No. 456 of 2015 and in the case of Bhaskar Bhattacharya (supra) has clearly held that the definition of employee under the Act of 1972 would include the employee of a society registered under the Societies Registration Act. The period of petitioners' working in the District Rural Development Agency, therefore, cannot be excluded for the purpose of payment of gratuity to the employee concerned. The authorities, therefore, would not be justified in denying payment of gratuity to the petitioners and to restrict its benefit only to the period after their absorption in the employment of State. The writ petition, therefore, succeeds and is allowed.

7. A mandamus is issued to the respondents to calculate the amount of gratuity payable to petitioners after taking into consideration the entire length of their service (inclusive of the period during which services were rendered by them to the District Rural Development Agency) and to release the amount within a period of three months from the date of presentation of a certified copy of this order, failing which, the petitioners shall also be entitled to the interest @ 8%. It would be open for the State to adjust the period of petitioners' working in DRDA either from the DRDA concerned or the department of Rural Development which has taken over the affairs of DRDA. It is otherwise not in issue that DRDA is an agency and instrumentality of State and would clarify to be State within the meaning of Article 12 of the Constitution of India. Petitioners' claim for grant of benefit of revised pay scale w.e.f. 1.1.2016 shall also be examined in light of the order passed by the authority concerned on 28th June, 2017 as per which it got enforced w.e.f. 1.1.2016. An appropriate order in that regard would also be passed within the aforesaid period. The order impugned in this petition shall remain subject to the fresh order to be passed by the respondent, as directed above.?

14. It appears that when the said directions were not followed, Contempt Petition was filed whereafter on 23.03.2020 inter alia following Government Order was issued:

"7. ??? ?? ??????? ??? ???? ?? ???? ?? ????? ??? ?? ?? ???? ??????? ????? ?????? ?? ????? ???????? ?????? 18.07.2016 ?? ???? ?? ?????? ?????? ????? ?? ??? ??, ????? ???????? ?????????? ?? ???? ? ??? ?????? ???????? ?? ????? ???? ?? ????? ???? ??? ???? ????? ?? ???????/???????? ?????? 29.03.2018 ??? ???????? ???????? ?? ????????, ?????? 29.03.2018 ?? ??????????? ????????? ?? ????? ??? ???? ??????? ????? ?????? ??? ?? ??? ???? ??? ??????? ????? ????? ??? ?? ??? ???? ?? ???????? ???? ???? ??????????? ?? ???? ?? ??????? ???? ?? ???? ?? ?????????? ?????????? ?? ???? ???? ???? ?????????? ?? ?????? ???? ????????? ???? ???, ?????? ?? ??? ?? ????? ??? ??? ?? ???? ??????? ????? ?????? ?? ???? ??? ??????? ????? ????? ??? ?? ??? ???? ?? ???? ??? ??? ?????????? ?? ?????? ???? ?? 20.00 ??? ?? ???? ? ?????

?? ?????? ???? ???? ?? ?? ???? ???? ????? ?????????? ?? ????/????? ?? ???? ?? ??????? ????? ????? ???????? ?????? ????????? ???? ?? ???? ?????"

15. The above stipulation is very clear, providing for counting of service rendered with DRDA for the purpose of calculation of amount of gratuity. Once the issue qua those employee who have served under DRDA prior to their absorption with the State Government itself has been settled, the case of the respondent stands on a better footing wherein he was appointed pursuant to selection under order of the State Government whereby 887 posts were created and appointments were made at DRDA.

16. In view of above factual and legal position, the appeal, as filed, is bereft of any substance, the same is, therefore, dismissed.

(Jaspreet Singh, J.) (Arun Bhansali, C.J.)

November 21, 2025

RK