# District Basic Education Officer & Anr v. Shivkali & Ors

- **Citation:** (2021) 11 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Special Appeal Defective No. 651 of 2021
- **Bench:** Manoj Misra, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/district-basic-education-officer-anr-v-shivkali-ors-46501
- **Pages:** 9

## Headnote

A. Service Law - Government Order Clause 5seeking for release the amount of death-cum
retirement gratuity-respondent's husband died
in harness, she was denied the death-cum
retirement gratuity-respondent's husband did
not exercise the option to retire the age of 58
years-the age of superannuation was enhanced
from 60 to 62 years-but he could not opted as
he died before completing 60 years, and he
had to opt on first day of July 2010, which
never came in the life time of the first
respondent's husband because of his death a
day before, he could not exercise the option,
the claim for death gratuity could not be
denied-Learned Single Judge rightly passed the
order.(Para 1 to 15)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

11 All. District Basic Education Officer & Anr. Vs. Shivkali & Ors.
265

11. Accordingly, both the petitions are
allowed.

12. Before parting, I appreciate the useful
assistance of Ms. Shama Parveen, Law Clerk/
Trainee and Sri Vaibhav Srivastava, Law Intern.
----------
(2021)11ILR A265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal Defective No. 651 of 2021

District Basic Education Officer & Anr.
 ...Appellants
Versus
Shivkali & Ors. ...Respondents

Counsel for the Appellants:
Sri Awadhesh Kumar

Counsel for the Respondents:
Sri Kamal Kumar Kesherwani

A. Service Law - Government Order Clause 5seeking for release the amount of death-cum
retirement gratuity-respondent's husband died
in harness, she was denied the death-cum
retirement gratuity-respondent's husband did
not exercise the option to retire the age of 58
years-the age of superannuation was enhanced
from 60 to 62 years-but he could not opted as
he died before completing 60 years, and he
had to opt on first day of July 2010, which
never came in the life time of the first
respondent's husband because of his death a
day before, he could not exercise the option,
the claim for death gratuity could not be
denied-Learned Single Judge rightly passed the
order.(Para 1 to 15)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Smt. Ranjana Kakkar Vs St. of U.P. & ors. (2008)
10 ADJ 63

2. Noor Jahan Vs St. of U.P. & 4 ors. Writ-A
No.40568 of 2016

3. Usha Vs St. of U.P. & ors. Writ-A No. 17399 of
2019
4. Savitri Vs St. of U.P. & ors. Writ-A No. 11474 of
2020

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Jayant Banerji, J.)

1. This intra-court appeal arises from a
judgment and order of a Single Judge dated
02.02.2021 in Writ-A No.11578 of 2020
whereby, the writ petition of the first respondent
was allowed with a direction upon the District
Basic Education Officer, Basti (first appellant)
and the Finance and Account Officer (Basic
Education), Basti (second appellant) to compute
the amount payable to the petitioner towards
gratuity in terms of the scheme formulated by
the Government Order dated September 16,
2009 and release the same along with interest at
the rate of 8% per annum from the date of filing
the application for gratuity till the amount is
actually disbursed.

2. In brief, the facts giving rise to the
appeal are as follows:-

2 (i). The husband of the first
respondent was appointed as Assistant Teacher
on 11.03.1974 in a basic school under the Basic
Shiksha Parishad, Uttar Pradesh. Later, he was
promoted on the post of Headmaster. Initially,
the age of superannuation was 58 years which
was enhanced to 60 years and, later, to 62 years.
Before
enhancement
of
the
age
of
superannuation to 62 years, by Government
Order
No.6369/15-5-93-55/89,
dated
23.11.1994,
the
benefit
of
gratuity
was
introduced to teaching and non teaching staff of
266 INDIAN LAW REPORTS ALLAHABAD SERIES
basic education institutions for those who opt to
retire on attaining the age of 58 years. Such
option, as per Clause 2 of the Government
Order, dated 23.11.1994, was to be exercised
within 90 days from the issuance of the
Government Order. This period, however, was
extended by Government Order No.5491/15-52002-212/2001, dated 10.06.2002, extracted
below:-

"f'k{kk
vuqHkkx&5
la[;k&
5491@15
&
5&2002& 212@2001] fnukad 10 twu] 2002

isz"kd]

fnus'k pUnz dukSft;k]

fo'ks"k lfpo]

mRrj izns'k 'kklu]

bykgkcknA

lsok esa]

f'k{kk funs'kd] 1⁄4csfld1⁄2 ,oa v/;{k]

mRrj izns'k csfld f'k{kk ifj"kn~]

bykgkcknA

fo"k;% mRrj izns'k csfld f'k{kk ifj"knh;
f'k{kd@f'k{k.ksRrj deZpkfj;ksa ds lsokfuo`frd ykHkkas esa
ifjorZu gsrq fodYi dh lqfo/kk fn;s tkus ds laca/k esa
uhfr fu/kkZj.kA

egksn;]

mi;qZDr
fo"k;d
'kklukns'k
la[;k&
6369@15&5&93&55@89] fnukad 23-11-1994 ds
vuqdze esa eq>s ;g dgus dk funs'k gqvk gS fd mDr
'kklukns'k }kjk iznRr fodYi dks lqfo/kk ds ykHk ls
oafpr jg x;s csfld f'k{kk ifj"kn f'k{kd@f'k{k.ksRrj
deZpkfj;ksa ds laca/k esa fodYi ifjorZu dh lqfo/kk iznku
fd;s tkus dh ekax ij lE;d~ fopkjksijkUr Jh jkT;iky
;g vkns'k iznku djrs gSa fd m0 iz0 csfld f'k{kk
ifj"knh;
f'k{kdks@f'k{k.ksRrj
deZpkfj;ksa
}kjk
lsokfuo`fRr ds ,d o"kZ vFkkZr~ ftl 'kSf{kd l= eas
mudh lsokfuo`fRr gksxh] mldks igyh tqykbZ rd
fodYi ifjorZu dj ldrs gSaA fdUrq ,sls deZpkjh tks
58 o"kZ dh vk;q ij lsokfuo`fRr dk fodYi nsrs gSa] dks
lsokfuo`fRr ds iwoZ rd fodYi ifjorZu dh lqfo/kk
vuqeU; gksxhA ;g O;oLFkk bl 'kklukns'k ds tkjh gksus
dh frfFk ls ykxw gksxhA

2- ;g vkns'k foRr foHkkx ds v'kkldh;
la[;k&bZ&11@753 nl&2002] fnukad 4-6-2002 esa izkIr
mudh lgefr ls tkjh fd;s tk jgs gSaA

Hkonh;

1⁄4fnus'k pUnz dukSft;k1⁄2

fo'ks"k lfpoA

2 (ii). Thereafter, on February 4, 2004,
Government Order No.289/79-6-04-28(5)/2004
was issued enhancing the age of superannuation
from 60 years to 62 years and, further, clarifying
that the retiral dues that were to be available on
attaining the age of 58 years would now be
available at the age of 60 years; and those retiral
dues that were to be available at the age of 60
years would now be available at the age of 62
years. The said Government Order is extracted
below:-

"csfld ,oa lgk;rk izkIr mPp izkFkfed fo|ky;ksa
ds f'k{kdksa dh lsok fuo`fRr

vk;q 60@62 o"kZ

la[;k 289@79&6&04&281⁄451⁄2@2004

isz"kd]

lsok esa]

Jh gfjjkt fd'kksj

f'k{kk funs'kd 1⁄4csfld1⁄2 lfpo]

mRrj izns'k y[kuÅ

mRrj izns'k 'kkluA

f'k{kk vuqHkkx&6
y[kuÅ%
fnukad % 4 Qjojh] 2004

fo"k; % ifj"knh; izkFkfed fo|ky;] ifj"knh;
mPp izkFkfed fo|ky; rFkk mPp izkFkfed fo|ky;ksa ds
v/;kidksa dh vf/ko"kZrk vk;q orZeku 60 o"kZ ls 62 o"kZ
fd;s tkus ds lEcU/k esaA

egksn;]

'kklu }kjk lE;d fopkjksijkUr ;g fu.kZ;
fy;k x;k gS fd ifj"knh; izkFkfed fo|ky;] ifj"knh;
mPp izkFkfed fo|ky; rFkk lgk;rk izkIr mPp
izkFkfed fo|ky;ksa esa 'kklu }kjk l`ftr inksa ij
fu;ekuqlkj dk;Zjr v/;kidksa dh orZeku vf/ko"kZrk
vk;q esa o`f) dj nh tk;sA

vr% Jh jkT;iky egksn; rkRdkfyd izHkko
ls ifj"knh; izkFkfed fo|ky;] ifj"knh; mPp izkFkfed
fo|ky; rFkk lgk;rk izkIr mPp izkFkfed fo|ky;ksa esa
'kklu }kjk l`ftr inksa ij fu;ekuqlkj dk;Zjr
v/;kidksa dh orZeku vf/ko"kZrk vk;q dks 60 o"kZ ls c
11 All. District Basic Education Officer & Anr. Vs. Shivkali & Ors.
267

bl lEcU/k esa iwoZ esa fuxZr leLr
'kklukns'k mDr lhek rd la'kksf/kr le>s tk;saxs rFkk
mudh 'ks"k 'krsZa ;Fkkor~ jgsxhA

mRrj izns'k csfld f'k{kk 1⁄4v/;kid1⁄2 lsok
fu;ekoyh] 1981 ds laxr fu;eksa esa vko';d la'kks/ku
dh dk;Zokgh 'kklukns'k tkjh gksus ds rhl fnu ds
vUnj lqfuf'pr dj yh tk;sxhA

;g vkns'k foRr fOkHkkx ds v'kkldh; i=
la[;k ;w0 vks0 bZ0&11&207@2004 fnukad 04-2-2004 esa
izkIr lgefr ds vUrxZr fuxZr fd;s tk jgs gSaA

Hkonh;]
g0@&
gfjjkt fd'kksj]

lfpoA

2 (iii). After the age of superannuation
was enhanced from 60 to 62 years, the State
Government issued yet another Government
Order
No.1754/79-5-09-02/2009,
dated
16.09.2009, inter alia, providing Death-CumRetirement Gratuity up to a maximum of Rs.10
lacs to those who opted to retire at the age of 60
years. Clause 5 of the said Government Order is
relevant and is extracted below:-

"5- lsokfuo`fRrd xszP;qVh

60 o"kZ dh vk;q dk fodYi fn;s tkus ij
lsokfuo`fRrd xszP;qVh@e`R;q xszP;qVh dh vf/kdre /kujkf'k #0
10-00 yk[k 1⁄4#i;s nl yk[k ek=1⁄2 rd lhfer gksxhA

2 (iv). The first respondent's husband,
whose date of birth was 01.07.1951, died in
harness on 30.06.2010, that is even before he
could attain the age of 60 years. Before his
death, first respondent's husband had not
exercised his option to retire at the age of 60
years. Consequently, the claim of the first
respondent for release of death gratuity was not
acknowledged. As a result, the first respondent
filed Writ-A No.11578 of 2020 for a direction
upon the respondents to release the amount of
death-cum retirement gratuity otherwise payable
under Government Order dated 16.09.2009 with
interest at the rate of 18% per annum.

2 (v). The appellants contested the
claim of the first respondent on the ground that
under the Government Order dated 23.11.1994
gratuity was payable upon exercise of option to
retire at the age of 58 years, that too, within
three months from the date of issuance of
Government Order. Later, the period to exercise
the option was extended, vide Government
Order dated 10.06.2002 (supra), up to the first
day of July of the year at the end of which the
incumbent would have attained the age of
superannuation, which means that the option
could be exercised up to the first day of July of
the year in which the incumbent would have
attained the age of 58 years and not later.
According
to
the
appellants,
the
first
respondent's husband had crossed the age of 58
years without exercising the option therefore, it
would be deemed that he had not opted for the
benefit of death cum retirement gratuity and as
such the same was not payable to the first
respondent.

2 (vi). The case of the first respondent
had been that the purpose of the Government
Order dated 23.11.1994 was to provide the
benefit of gratuity to those who opted to retire at
the age of 58 years i.e. two years before
attaining the age of superannuation. This age of
superannuation was enhanced by Government
Order dated February 4, 2004 from 60 years to
62 years. Thereafter, by Government Order
dated September 16, 2009 the benefit of deathcum-retirement gratuity up to a maximum of
Rs.10 lacs was available to those who opted to
retire at the age of 60 years. The time period to
exercise the option, under the Government Order
dated 23.11.1994, was upto three months from
the date of issuance of the said Government
Order but this period was extended by the
Government Order dated June 10, 2002 up to the
first day of July of the year in which the
incumbent would have attained the age of
superannuation. Since the age of superannuation
was increased from 60 years to 62 years and the
retirement benefits that were to be available on
completion
of
58
years
and
60
years,
respectively, were to be made available on
completion
of
60
years
and
62
years,
268 INDIAN LAW REPORTS ALLAHABAD SERIES
respectively, vide Government Order dated
04.02.2004 (supra), by necessary implication,
this option became exercisable up to the first day
of July of the year in which the incumbent
would have completed the age of 60 years. And
since in terms of clause 5 of the Government
Order dated September 16, 2009 the benefit of
death-cum-retirement gratuity was available
either on death before completion of 60 years or
on retirement at the age of 60 years, the first
respondent was entitled to it. Thus, the case of
the first respondent is that as her husband could
have exercised his option to retire at the age of
60 years till the first day of July 2010 and,
because of his death a day before, he could not
exercise the option, the claim for death gratuity
could not be denied.

2 (vii). The learned Single Judge
accepted the contentions made on behalf of the
writ petitioner (i.e. first respondent herein) and
by placing reliance on certain decisions, which
we shall refer to later, allowed the writ petition
by issuing a direction upon the appellants to
compute the gratuity payable to the writ
petitioner in terms of the scheme formulated by
Government Order dated September 16, 2009
with interest etc.

3. We have heard Sri K. Sahi along with
Sri Awadhesh Kumar for the appellants; Sri
Kamal Krishna Kesharwani for the contesting
respondent no.1; and the learned Standing
Counsel for the respondents 2 to 5.

4. Sri K. Sahi, who led the arguments for
the appellants, submitted that the decisions on
which the learned Single Judge has placed
reliance have not taken into consideration that
the benefit of option to retire at the age of 58
years, which was later enhanced to 60 years,
for availing the benefit of gratuity had to be
exercised, under the Government Order dated
23.11.1994, within 90 days of the issuance of
that
Government
Order,
and,
under
Government Order dated June 10, 2002, up to
first day of July of the year in which the
incumbent would have completed the age of
58 years. But as this option was never
exercised by the husband of the first
respondent up to the first day of July, 2008,
the first respondent was not entitled to the
benefit of death gratuity. It has been
contended that the learned Single Judge has
failed to consider the true import of the
Government Order dated June 10, 2002.

5. Per contra, learned counsel for the
contesting respondents submitted that the
Government Order dated June 10, 2002 has to be
read not in isolation but with the subsequent
Government Orders dated February 4, 2004 and
September 16, 2009. By Government Order
dated
February
4,
2004,
the
age
of
superannuation was enhanced from 60 years to
62 years and it was clearly specified that those
benefits that were available on completion of the
age of 58 years would now be available on
completion of the age of 60 years. Following
that, clause 5 of the Government Order dated
September 16, 2009 clearly provided that the
death - cum -retirement gratuity would be
available to those who opt to retire at the age of
60 years. It was urged that a combined reading
of the three Government Orders would suggest
that the last day to exercise the option for the
benefit of retirement at the age of 60 years on
enhancement of the age of retirement from 60
years to 62 years got extended up to the first day
of July in which the incumbent would attain the
age of 60 years. Consequently, as the date of
birth of the husband of the first respondent was
01.07.1951, he would have completed 60 years
on June 30, 2011 and, therefore, the last date for
exercise of option by her husband would be
deemed to be the first day of July, 2010. But
since he died on June 30, 2010 i.e. a day before,
he could not exercise his option to retire at the
age of 60 years hence the benefit of death
gratuity as payable under the Government Order
dated 16.09.2009 could not be denied. It was
11 All. District Basic Education Officer & Anr. Vs. Shivkali & Ors.
269
thus submitted that the view taken by the learned
Single Judge suffers from no infirmity.

6. We have considered the rival
submissions and have perused the record
carefully.

7. Before we deal with the rival
submissions it would be apposite to notice a few
decisions that have been consistently followed in
connection with grant of relief to such claimants
as the first respondent. The earliest decision on
the issue was a Division Bench decision in the
case of Smt. Ranjana Kakkar Vs. State of U.P.
and others: 2008 (10) ADJ 63. The controversy
involved in that case was that the Government
had taken a decision to raise the retirement age
of the employees from 58 years to 60 years.
Those who did not want to continue up to the
age of 60 years, were given an option to retire at
the age of 58 years with the benefits of Deathcum-Retirement
Gratuity,
pension,
family
pension and general provident fund. The
employees who did not opt to retire at the age of
58 years and wanted to avail two years of
additional service upto the age of 60 years, were
not to be provided with the benefit of Deathcum-Retirement Gratuity. The other benefits
namely pension, family pension and general
provident fund were to be made available to
both categories of employees. In that case, the
employee concerned had opted to retire at the
age of 60 years but as providence would have it
he died in an accident at the age of 45 years. The
widow of that employee made a representation
to the employer stating that though her husband
had opted to continue in service upto the age of
60 years thereby foregoing the benefit of Deathcum-Retirement Gratuity but as he died much
before attaining that age, he could not be
deprived of the benefit of Death-cum-Retirement
Gratuity which would have, otherwise, been
available to him if he had not given an option to
retire at the age of 60 years. The claim of the
widow was rejected by the employer. The
widow invoked the writ jurisdiction of this
Court. After considering the true import of the
beneficial provisions of the various Government
Orders, the Division Bench of this Court, in
paragraphs 10, 11, 12 and 13 of the judgment,
observed as follows:-

"10. The scheme of the Government
Orders dated 24.12.1983 and 21.08.1990 was to
give the benefit of the extended age of retirement
from 58 years to 60 years subject to the
conditions that those teachers, who will retire at
the age of 58 years, will not be given benefit of
D.C.R.G and those, who want to take benefit of
two years additional service, will get the
calculation of pension only upto age of 58 years.
These benefits, as it is stated in the opening
paragraph of the Government Order dated
24.12.1983, were given for the purposes of
providing social security to the teachers. These
benefits were available to only those who could
live up to the date of their superannuation to
avail
these
benefits.
For
those,
who
unfortunately could not reach the age of 58
years, could not be taken to be covered by the
scheme.

11. The providence to survive upto the
age of 58 years could not be known to the
teachers exercising options. The God has not yet
bestowed the man with the powers to foresee or
to predict death. The man arranges his affairs in
accordance with the wisdom given to him by
God. The Almighty has reserved the powers of
sustaining and guiding human destiny. No one,
who was required to give an option under the
scheme, could have predicted, whether he would
survive to claim the benefits.

12. Where an event cannot be foreseen
and a person is invited to give options with the
understanding to arrange his affairs according
to his own wisdom, his choice should not be
allowed to work to his disadvantage after his
death. He should be provided with the maximum
of the benefits and social security after his
death. Late Prof. Amarnath Kakkar did not live
270 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond the age of 45 years. He may have
planned for his affairs upto the age of 60 years,
both for himself and and his family. The God
however willed otherwise. His untimely death
made his option unworkable. In order to give
him maximum benefits of the social security,
which was the intention of the Government
Order dated 24.12.1983, he could not be denied
the D.C.R.G payable to him and calculated upto
his death, for the completed years of service
rendered by him to the University. His life was
cut
short
and
thus
his
option
became
unworkable and futile, on his death at the age of
45 years. He could not be pinned down to his
option by the University, to deprive his family of
the gratuity earned by him and payable to his
family.

13. The ''gratuity' is defined in
Webster's
New
Collegiate
Dictionary
as
something
given
voluntarily,
or
beyond
obligation usually in return for, or in
anticipation of some service. The Black's Law
Dictionary defined gratuity as a recompense or
reward of service or benefits given voluntarily
without solicitation or promise. Late Amarnath
Kakkar could have given up gratuity voluntarily
on his option, if he had the occasion to avail the
benefit of two years additional service. When he
could not avail the benefit and was not in a
position to change his option, he cannot be
denied the reward by way of gratuity payable to
him on completing 58 years of service. The event
provided in his option i.e. the extended service
up to the age of 60 years, became an
impossibility to be performed by him and thus
his option would be deemed to be revoked in
law, on principles of frustration of contract."

8. In the case of Noor Jahan Vs. State of
U.P. and 4 others (Writ-A No.40568 of 2016,
decided on 04.01.2018), the writ petitioner's
husband died at the age of 57 years and before
his death, he could not exercise the option to
retire at the age of 60 years and therefore the
benefit of death gratuity available otherwise
under the Government Order dated September
16, 2009 was denied. Aggrieved by such denial,
the widow of the incumbent filed writ petition.
A Single Judge Bench of this Court held as
under:-

"Government
Order
dated
16th
September, 2009 provides for revision of
pension and other retiral benefits to the retired
employees of the department of basic education.
This Government Order grants higher benefits
w.e.f. 1.1.2006. Clause 4(1) of the Government
Order provides that pension would not be
payable to those employees, who have not
completed 10 years of qualifying service, but the
employees who retire upon attaining the age of
superannuation of 60 years would be entitled to
gratuity and other service benefits. The
Government Order does not restrict payment of
gratuity to an employee, who is otherwise
covered under the scheme just because he has
not attained the age of 60 years. Reference to
age of 60 years is due to fact that age of
superannuation under the rule is otherwise 60
years. Position has otherwise been clarified by
Clause 5 of the Government Order, which
provides that gratuity would be payable at the
age of 60 years or upon death. The respondents,
therefore, were not justified in rejecting
petitioner's claim for payment of gratuity, in
terms of Government Order dated 16.9.2009.
The impugned action, therefore, cannot be
sustained. Order dated 8.7.2016 is, accordingly,
quashed.

A
direction
is
issued
to
the
respondents to compute the amount payable to
petitioner's husband towards gratuity in terms of
the scheme and release the same, within a
period of three months from the date of
production of certified copy of this order. The
petitioner shall also be entitled to interest at the
rate of 8% per annum, from the date of filing of
the application till the amount is actually
disbursed.

Writ petition is, accordingly, allowed."
11 All. District Basic Education Officer & Anr. Vs. Shivkali & Ors.
271

9. Following the above decision as well as
other decisions, in Writ-A No.17399 of 2019
(Usha Rani Vs. State of U.P. and others),
decided on 07.11.2019, it was held as follows:-

"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.

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. Relevant paragraph of the
said judgment is quoted below:-

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

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.

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."

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.

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

10. Following the above decisions, similar
orders have been passed in Writ-A No.11474 of
2020 (Savitri Vs. State of U.P. and others),
decided on 28.07.2021, and several other
matters.

11. The issue that arises for our
consideration is whether an employee who, by a
certain a date, could exercise an option to retire
early to avail the benefit of gratuity, dies before
that date, and prior to his death had not
exercised that option, should his heirs be denied
the benefit of death gratuity which, otherwise,
would have been available to them had that
272 INDIAN LAW REPORTS ALLAHABAD SERIES
employee died at that age after exercising the
option.

12. To have an answer to the issue we
would have to examine as to- (a) what had been
the purpose of conferment of such benefit on
exercise of the option; and (b) whether the
Government Orders that conferred the benefit
had fixed a time period by which that option was
to be exercised, if so, whether the incumbent i.e.
first respondent's husband had crossed the time
limit by which he could have exercised that
option. In so far as the purpose of conferring
such benefit is concerned the same is obvious,
which is to provide social security to those who
forego two years of additional service. There
could be a latent purpose as well, which is to
encourage people to seek early retirement may
be to streamline the organization. Be that as it
may, it is a beneficial provision to accord social
security to the employee and his or her
dependents therefore, an interpretation that
promotes and serves the purpose for which it is
crafted
must
be
preferred.
Under
the
circumstances, whatever the purpose might be,
the same is subserved where the nature exercises
the option on behalf of the incumbent by letting
him not survive even upto the last day by which
he could have exercised the option. Therefore,
denying the heirs/dependents of such an
incumbent the benefit of social security that,
otherwise, would have been available to them
had the incumbent exercised his option would
defeat the very purpose for which the policy was
made. Thus, to ensure that the policy serves its
purpose fully, in our view, where a last date for
exercise of the option is yet to arrive and before
that date the incumbent dies, without exercising
his option, his dependents should not be
deprived of the benefit which they would have
been otherwise entitled to had the incumbent
exercised his option.

13. In so far as the contention of the
learned counsel for the appellants that by
Government Order dated June 10, 2002 the
option could have been exercised only upto first
day of July in which the incumbent was to attain
the age of 58 years is concerned, the same is not
acceptable. Because a plain reading of the
Government Order dated June 10, 2002 would
reflect that it is in two parts. The first part is in
respect of fixing the last date for exercise of
option to retire early to avail the benefits of early
retirement whereas the second relates to the last
date for change of the option submitted earlier.
In the first part, the age of retirement is not
mentioned. What is stated in the first part is that
those who could not exercise their option to
avail the benefits under the earlier Government
Order dated 23.11.1994 may exercise their
option by the first day of July of the year in
which they attain the age of superannuation. The
second part gives option to those, who had
already opted to retire at the age of 58 years, to
change their option before they retire. Meaning
thereby that if suppose a person has given an
option to retire at the age of 58 years, before he
attains the age of 58 years, he can change the
option. Thus, as by Government Order dated
February 4, 2004 the age of superannuation was
enhanced from 60 years to 62 years by
specifically providing that the benefits that were
available on retirement at the age of 58 years
would now be available upon completion of the
age of 60 years and those that were to be
available at the age of 60 years, would now be
available on completion of the age of 62 years,
by necessary implication, the option that could
earlier be exercised upto the first day of July in
which the incumbent was to attain the age of 58
years became exercisable upto the first day of
July in which the incumbent would attain the
age of 60 years.

14. In the instant case, since the date of
birth of the first respondent's husband was
01.07.1951, he would have completed 60 years
on June 30, 2011. Thus, the last day by which he
could have opted to retire at the age of 60 years
11 All. Vikas & Ors. Vs. State of U.P. & Ors.
273
would be the first day of July, 2010, which never
came in the life time of the first respondent's
husband. Thus, for all the reasons given above,
the benefit of death gratuity that would have
been available to the incumbent's dependents/
heirs on incumbent's death, before attaining the
age of 60 years, under the Government Order
dated September 10, 2009, would be available to
his heirs/dependents.

15. For all the reasons above, we find
ourselves in agreement with the view taken by
the learned Single Judge. Consequently, the
appeal fails and is dismissed.
----------
(2021)11ILR A273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 656 of 2020
with others

Vikas & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Tarun Agrawal, Sri Prashant Mishra, Sri
Tarun Agrawal

Counsel for the Respondents:
Sri F.A. Ansari, Sri G.K. Singh, Sri Ashish Kumar
Singh, Sri Avneesh Triapthi, C.S.C., Sri Greesh
Kumar Malviya, Sri Hritudhwaj Pratap Sahi, Sri
M.N. Singh, Sri Shailendra Srivastava

A.
Service
matter-challenge
to-selection
process of Appointment of Assistant Review
Officers and Review Officers-petitioners had
not permitted to participate in typing test on
the ground that they did not possess the 'O'
Level Certificate-merely because a candidate
perceives that a qualification held by him is
superior or better, that alone would not entitle
him to be considered as eligible unless the
rules of selection so ordain or provide for a
higher qualification being accepted-issue of
equivalence must necessarily be determinedThe court finds no justification to expand the
field of eligibility in the exercise of its powers
of judicial review.(Para 1 to 62)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Dr. Krushna Chand Sahu Vs St. of Ori. (1995) 6
SCC 1

2. Chandrakala Trivedi Vs St. of Raj. & ors. (2012) 3
SCC 129

3. Parvaiz Ahmad Parry Vs St. of J.& K. & ors. (2015)
17 SCC 709

4. St. of U.K. & ors. Vs Deep Chandra Tewari & anr.
(2013) 15 SCC 557

5. Praveen Kumar C.P. Vs Ker. Public Service
Commission(2021) SCC OnLine SC 612

6. Aakash Verma & ors. Vs St. of U.P & ors., Service
Single No. 20385 of 2019

7. Deepak Singh & ors. Vs St. of U.P & ors. (2019) 7
ADJ 453

8. St. of U.P. Vs Aakash Verma,Special Appl Def. No.
244 of 2021

9. Prashant Kumar Jaiswal Vs St. of U.P.(2018) 2 ADJ 633

10. Mukul Kumar Tyagi Vs. St. of U.P.(2020) 4 SCC 86

11. Asheesh Kumar & 6 ors. Vs St. of U.P. & 2 ors.
(2020) 11 ADJ 652

12. Zahoor Ahmad Rather Vs. Imtiyaz Ahmad.(2019)
2 SCC 404

13. Mah. Public Service Commission Vs Sandeep
Shriram Warade,(2019) 6 SCC 362.

14. PNB Vs Anit Kumar Das (2020) SCC Online SC
897