Allahabad High Court
Brijesh Kumar Singh vs State Of U.P. Thru Its Prin. Secy. Basic ... on 24 May, 2022
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 4 Case :- WRIT - A No. - 3124 of 2022 Petitioner :- Brijesh Kumar Singh Respondent :- State Of U.P. Thru Its Prin. Secy. Basic Education Deptt. Lko. And 5 Others Counsel for Petitioner :- Ramesh Kumar Srivastava Counsel for Respondent :- C.S.C.,Manish Mishra,Ran Vijay Singh Hon'ble Rajan Roy,J.
Heard.
The claim of the petitioner for gratuity has been denied on account of pendency of the matter before the State Government.
On the face of it the reasons given are not tenable as there are many judgments of this Court that gratuity is payable and the same can not be denied merely because the deceased employee/teacher had not submitted option obviously on account of unforeseen circumstances leading to his death, Yet such orders are being passed.
The Court may refer to a recent judgment dated 20.04.2022 rendered in Writ - A No. 1896 of 2022; Prem Shankar Vs. State of U.p. and Ors., wherein the issues pertaining to payment of gratuity have been reiterated. The said judgment reads as under:-
"Heard.
Considering the nature of the dispute there is no need to call for a counter affidavit in the matter as the legal position has already been settled.
On 4.4.2022 the following order was passed:
"Heard.
It is surprising that by means of the impugned order, the Basic Shiksha Adhikari, Sitapur says that there is no provision for payment of gratuity to teachers in schools run by the Basic Education Board whereas there are so many orders of this Court wherein learned counsels have admitted to existence of such a provision and one of the cases bearing Writ Petition No.5341 (S/S) of 2021 [Johra Begum vs. State of U.P. & Ors.], there is a reference to U.P. School and College Teachers Gratuity Fund Rules, 1964 as also the Government Order dated 23.11.1994 wherein learned counsel for the B.S.A. had also stated that provision existed in the G.O. dated 23.11.1994 but there was a provision for exercising option on which the law was discussed by this Court.
Let learned counsel for B.S.A. seek specific instructions as to how such an order has been passed.
List this case on 08.04.2022 as fresh."
Thereafter, on 8.4.2022 the following order was passed:
"On 04.04.2022, the following order was passed:-
"Heard.
It is surprising that by means of the impugned order, the Basic Shiksha Adhikari, Sitapur says that there is no provision for payment of gratuity to teachers in schools run by the Basic Education Board whereas there are so many orders of this Court wherein learned counsels have admitted to existence of such a provision and one of the cases bearing Writ Petition No.5341 (S/S) of 2021 [Johra Begum vs. State of U.P. & Ors.], there is a reference to U.P. School and College Teachers Gratuity Fund Rules, 1964 as also the Government Order dated 23.11.1994 wherein learned counsel for the B.S.A. had also stated that provision existed in the G.O. dated 23.11.1994 but there was a provision for exercising option on which the law was discussed by this Court.
Let learned counsel for B.S.A. seek specific instructions as to how such an order has been passed.
List this case on 08.04.2022 as fresh."
Today learned Counsel for the B.S.A. reiterates the stand of the B.S.A. in the impugned order that there is no provision for payment of gratuity in view of the Government Order dated 02.03.2015 by which gratuity is payable to only such employees and teachers whose age of retirement is 60 years whereas the age of retirement of teachers is 62 years.
The matter requires clarification by the Director, Basic Education.
Let Shri Vivek Shukla, learned Additional C.S.C. seek specific instructions from the Director, Basis Education as to whether there is any provision for payment of gratuity to the primary teachers in the schools run by the Basic Education Board or not?, because this Court was made to believe in various cases that a provision exists and accordingly orders are being passed. Let the provision be placed before this Court and the rule position in this regard be verified in writing.
List/Put up this case on 20.04.2022 as fresh.
It would be better if some gazetted officer from the office of Director, Basic Education Board appears before the Court on the said date for assistance so that this confusion is removed."
Today the law officer from the Directorate of Basic Education is present before the court and as per instructions provided by him to the Addl. C.S.C. Sri Vivek Shukla, Advocate provision of gratuity is very much there, however, option was required to be exercised.
In similar matters this court has already passed the orders, one of which is dated 24.3.2021 rendered in Writ Petition No. 5345 (SS) of 2021, Anoop Kumar v. State of U.P. & ors., which reads as under:
"Heard.
The petitioner's wife Anita Kumari was appointed as Assistant Teacher on 06.07.2011. On 20.11.2015 she expired on account of illness. Husband i.e. the petitioner herein claimed death-cum-retirement gratuity. Gratuity has been denied by the impugned order dated 27.08.2020 on the ground that his wife had not opted for retirement at the age of 60 years as against the normal retirement at the age of 62 years, therefore, she was not entitled to gratuity.
Contention of the learned counsel for the petitioner is that death of his wife happened suddenly and could not be foreseen. Moreover, the wife had joined service barely four years ago and she was of 41 years, whereas the option could be exercised prior to 60 years at any time.
Sri Rajeev Singh Chauhan, Advocate agrees to the extent that she could have exercised her option prior to attaining the age of 60 years and any option thereafter would not be acceptable.
Learned counsel for the petitioner says that there are certain government orders which say that option has to be exercised within the last year in which she would attain the age of 60 years.
Be that as it may, in either eventuality she could not have foreseen her death and had not reached anyway near 60 years, therefore, in view of the Division Bench judgment in the case of Smt. Ranjana Kakkar v. State of U.P. & ors., 2008 10 ADJ 63 which has been followed in the subsequent decision in the case of Anguri Devi v. Regional Joint Director of Education, Agra Region & ors., reported in (2012) 1 LCD 674 and several other case as also a recent decision dated 19.03.2021 in Writ Petition No. 5341 (SS) of 2021 the ground for rejection of petitioner's claim for gratuity is not sustainable in law. Accordingly, the impugned order is quashed.
The concerned opposite party is directed to consider the claim of the petitioner for gratuity aforesaid and pass a reasoned order in accordance with law within four weeks from the date a certified copy of this order is submitted before him. The claim shall not be rejected on the ground that the petitioner's wife had not exercised her option as referred hereinabove, as there was no occasion for the same.
It is open for the petitioner to claim interest on the amount due as per law.
The writ petition is disposed off in the aforesaid terms."
There is another order dated 19.3.2021 passed in writ petition No. 5341 (SS) of 2021, Johra Begum v. State of U.P & ors. which reads as under:
"Heard.
The petitioner's husband is no more. She seeks gratuity which was payable to him in view of U.P. School and College Teachers Gratuity Fund Rules, 1964 as also the Government Order dated 23.11.1994.
Shri Ghaus Beg admits the fact that the G.O. dated 23.11.1994 relating to payment of gratuity to teachers of basic schools is referable to Section 13 of Basic Education Act, 1972 which has been promulgated subsequent to the Rules of 1964 and is more beneficial. As regards the requirement of option in the said Government Order the counsel for the petitioner relies upon a Division Bench judgement in the case of Smt. Ranjana Kakkar Vs. State of U.P. and ors. reported in 2008(10) ADJ 63 wherein it has been held that if death of a person is on account of unforeseen circumstances which could not be predicted, it cannot be presumed that the employee would have chosen to retire at particular age much prior in time than the contingency of achieving the age of retirement, therefore, the requirement of option would not apply in such a case. The said decision has been followed in subsequent decisions in the case of Smt. Angoori Devi Vs. Regional Joint Director of Education, Agra Region & Others 2012 (1) LCD 674 and several other cases.
Shri Ghaus Beg could not dispute this legal position.
In view of the above, the opposite party Nos.5 and 6 are directed to consider the claim of the petitioner for gratuity aforesaid and pass reasoned order in accordance with law within a period of 6 weeks from the date a certified copy of this order is submitted before them. The claim shall not be rejected on the ground that the petitioner's husband had not exercised his option under the Government Order dated 23.11.1994.
The petition is disposed of in view of the aforesaid terms."
Considering the fact that the wife of the petitioner died while in service on 19.4.2013 on account of illness, therefore, obviously she could not have foreseen her death and submit an option, as was required, especially as she had not reached any way near 60 years of age and died at the age of 57 years, therefore, in view of the Division Bench judgment in the case of Smt. Ranjana Kakkar v. State of U.P. & Ors., reported in (2008) 10 ADJ 63 which has been followed in the subsequent decision in the case of Angoori Devi v. Regional Joint Director of Education, Agra Region, & ors. reported in (2012) 1 MCD 674 and several other cases as also the judgments quoted hereinabove the order rejecting the claim of the petitioner to gratuity is not sustainable, especially as the provision of gratuity as already noted very much exists, therefore, the same is quashed. The concerned opposite party no. 4 is directed to consider the claim of the petitioner for gratuity and pass a reasoned in accordance with law within 4 weeks from the date a certified copy of this order is submitted before him. The claim of the petitioner shall not be rejected on the ground that the petitioner's wife had not exercised her option as referred hereinabove as there was no occasion for the same.
It is open for the petitioner to claim interest on the amount due as per law.
The petition is disposed off in the aforesaid terms."
In view of the reasons already given in the said judgment and the observations made hereinabove, the impugned order is quashed.
The Basic Education Officer, Lucknow is directed to consider the claim of the petitioner in the light of the aforesaid judgment and take a considered decision within a period of one month.
The learned counsel for petitioner has placed before the Court an order passed by the Principal Secretary, Govt. of U.P. on 22.05.2022 for payment of gratuity in pursuance to orders passed in certain writ petitions wherein contempt proceedings were initiated. The said order is taken on record. Copy of which has been provided to Shri Manish Mishra, learned counsel for opposite parties no. 5 and 6 who shall provide the same to the B.S.A., Lucknow.
Shri Manish Mishra, learned counsel for opposite parties no. 5 and 6 shall communicate this order for strict compliance.
With the aforesaid observations/directions, the writ petition is disposed of.
(Rajan Roy,J.) Order Date :- 24.5.2022 R.K.P.