Smt. Bindu Devi and 3 Others Vs State of U.P. and 5 Others

Court No. - 36

Case :- WRIT - A No. - 17523 of 2021

Petitioner :- Smt. Bindu Devi And 3 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Kartikey Pandey,B.S. Pandey Counsel for Respondent :- C.S.C.,Awadhesh Kumar

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Hon'ble Rajiv Joshi,J.

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Heard Sri Kartikey Pandey, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Sri Awadhesh Kumar, learned Counsel for the respondent nos. 5 & 6.

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Present writ petition has been filed for direction to the respondents to pay the gratuity of deceased Shyam Lal husband of the petitioner no. 1 with interest.

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Petitioner-1 husband was working as Assistant Teacher in Junior High School Ashokpur Block Parasrampur, District Basti. He died on 26.05.2021. Grievance is that though other benefits have been released but the amount of gratuity has not been released. This petition has been filed for a direction upon the respondents to pay the amount of death cum retirement gratuity consequent upon death of petitioner-1 husband alongwith interest.

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It appears that the amount of gratuity has not been paid on the ground that option to retire at the age of 60 years was not exercised by the deceased employee.

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It is next submitted by learned counsel for the petitioners that controversy involved in the present case has already been adjudicated by this Court in number of writ petitions. Reference can be had to the judgement of this Court in Writ Petition No.17399 of 2019 (Usha Rani vs. State of U.P. and others) , decided on 7.11.2019. Relevant portion of the aforesaid order is extracted hereinafter:-

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"............

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Following the decision rendered in the judgment of Noor Jahan (Supra) as well as Smt. Omwati (Supra), matter of Smt. Brijesh (Supra) for payment of gratuity was allowed by this Court by quashing the impugned orders by which gratuity was denied.

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Similar controversy was also decided by Lucknow Bench of this Court vide order dated 5.8.2019 passed in the matter of Smt. Mala Tripathi

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(Supra) in which Court has taken a similar view and held that if husband of petitioner died before attaining the age of 60 years and has not given option for retirement at the age of 60 years, gratuity cannot be denied only on this ground.

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Relevant paragraph of the said judgement is quoted below:-

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"Heard learned counsel for the contesting parties and perused the records.

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From perusal of the records, it clearly comes out that the petitioner's husband died in harness on 26.08.2012 while working as Assistant Teacher in an aided and recognized institution. It is also admitted that the family pension has been paid to the petitioner. The only dispute revolves around the payment of gratuity to the petitioner. The ground taken by the respondents of the petitioner's husband not having opted for retiring at the age of 60 years which thus entails non-payment of gratuity to her at the very out set does not stand to legal scrutiny inasmuch as it is an admitted case by the respondents also that the petitioner's husband died in harness on 26.08.2012 despite his actual date of superannuation being November 2019. Thus, an employee is only expected to submit an option prior to his retirement and not decades prior to his retirement. However, this aspect of the matter has not been considered by the respondents and even the letter of the Institution dated 19.03.2014, a copy of which has been filed as Annexure-3 to the petition, does not address the aforesaid issue.

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Accordingly, keeping in view the aforesaid discussions, the order dated 19.03.2014 (Annexure-3 to the petition) cannot be said to be valid in the eyes of law. As such, the writ petition deserves to be partly allowed and is hereby partly allowed. A writ of certiorari is issued quashing the order dated 19.03.2014. A writ of mandamus is issued directing the respondents to consider the case of the petitioner for payment of gratuity in accordance with law and relevant rules within a period of three months from the date of receipt of a certified copy of this order."

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Facts of the case and dispute involved in the present case is squarely covered by the pronouncements made by this Court which are referred herein above, therefore, under such facts and circumstances, impugned order dated 30.7.2019 passed by respondent No. 7- Block Education Officer Block Kadarchauk, Distruict Badaun is hereby quashed.

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Respondents are directed to compute the amount payable to the petitioner's husband towards gratuity in terms of the scheme and release the same, maximum within a period of three months from the date of production of certified copy of this order. ............"

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It is also submitted by learned Counsel for the petitioners that the petitioners have represented the matter in this regard before the Secretary, Basic Education, Lucknow on 20.09.2021 but nothing has been done till now.

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Learned Standing counsel on the other hand submits that no useful purpose would be served in calling for the counter affidavit and keeping the writ petition pending and an appropriate direction may be issued to the concerned

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respondent to examine the claim of the petitioner in the light of judgement in the case of Usha Rani (supra) within stipulated period.

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In view of the aforesaid, the writ petition stands disposed of with the direction to the petitioners to file a fresh representation within two weeks from today before respondent no. 5, District Basic Education Officer, Basti, who shall consider and decide the same, in accordance with law by reasoned and speaking order in light of judgement in the case of Usha Rani (Supra) within a period of three months from the date of its presentation along with a certified copy of this order. All consequential action shall be taken without any further loss of time.

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Petitioner's claim for gratuity shall not be rejected on the ground that "Option Form" has not been filled by the petitioner1 husband.

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Order Date :- 11.4.2022 Noman

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Digitally signed by NOMAN AHMAD Date: 2022.04.13 10:48:52 IST Reason: Location: High Court of Judicature at Allahabad

Smt. Bindu Devi and 3 Others v. State of U.P. and 5 Others

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Smt. Bindu Devi and 3 Others v. State of U.P. and 5 Others

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