Disposed

Mayank Kumar v. State of U.P. and 3 Others

Allahabad HC10 May 2023WRIA/6703/2023

Case brief

AI extract

What is this about?

The High Court held that a claim for gratuity cannot be rejected solely because the deceased employee did not fill out an 'Option Form' for retirement at age 60. Quashing an order denying benefits, the court directed the District Basic Education Officer to decide the petitioner's representation in light of the 'Usha Rani' judgment within three months.

What did the court decide?

The writ petition was disposed of by quashing the order dated 30.7.2019 and directing the District Basic Education Officer to decide the representation in light of the Usha Rani judgment within three

Mayank Kumar Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:100554

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Court No. - 36 Case :- WRIT - A No. - 6703 of 2023 Petitioner :- Mayank Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Durga Shanker Mishra Counsel for Respondent :- C.S.C.,Jai Krishna Tiwari

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Durga Shankar Mishra, learned counsel for the petitioner, learned Standing Counsel for the State respondent nos. 1 and 2 and Shri Jai Krishna Tiwari, learned Counsel for the respondent Nos. 3 & 4 .

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Petitioner's father while working as Assistant Teacher, at Primary School, Rajeev Garden, Block-Loni, District-Ghaziabad, died on 07.10.2007. 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's father along with 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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Controversy in that regard 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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"............ 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 (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

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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, District 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 petitioner that the petitioner has represented the matter in this regard before the respondent no. 3, District Basic Education Officer, Ghaziabad, on 24.03.2023 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 respondent no. 3, District Basic Education Officer, Ghaziabad, 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 upon respondent no. 3, District Basic Education Officer, Ghaziabad, to decide the representation of the petitioner dated 24.03.2023 in light of judgement in the case of Usha Rani (supra) in accordance with law within a period of three months from the date of production of 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 deceased employee.

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Order Date :- 10.5.2023

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Deepak/

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Digitally signed by :- DEEPAK KUMAR KUSHWAHA High Court of Judicature at Allahabad

Mayank Kumar v. State of U.P. and 3 Others

Case brief

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Mayank Kumar v. State of U.P. and 3 Others

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