# Kedar Ram v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-11
- **Case number:** Writ-A No. 30536 of 2014
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kedar-ram-v-state-of-u-p-ors-48781
- **Pages:** 5

## Headnote

A. Service Law - Entitlement of Gratuity -
GO dated 30.07.2007 and 16.09.2009 -
Applicability
-
Prospective
effect
-
Petitioner retired on 31.03.2006 from the
post of Head Clerk after attaining the age
of 60 years and had also given an option -
Finance
Controller
refused
to
grant
gratuity - Validity challenged - Held, GO
dated 16.09.2009 refers only to revision of
rates and how the emoluments are to be
calculated for grant of benefit of such
revised
rates.
It
does
not
decide
entitlement. The Government Order dated
30.7.2007 decides entitlement towards
gratuity and it refers to such employees
who had been left out from being given
such facility of gratuity earlier. It was
decided by the Government to extend the
facility of gratuity to such employees on
their retirement but such facility was
extended only with prospective effect -
High Court found no good ground for
interference, however left it open to the
petitioner to challenge the GO dated
30.07.2007. (Para 20 and 21)
Writ petition disposed off. (E-1)
List of Cases cited:-

## Text

406 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 8 ILRA 406
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 30536 of 2014

Kedar Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh, Sri J.P. Singh

Counsel for the Respondents:
C.S.C., Sri B.P. Singh

A. Service Law - Entitlement of Gratuity -
GO dated 30.07.2007 and 16.09.2009 -
Applicability
-
Prospective
effect
-
Petitioner retired on 31.03.2006 from the
post of Head Clerk after attaining the age
of 60 years and had also given an option -
Finance
Controller
refused
to
grant
gratuity - Validity challenged - Held, GO
dated 16.09.2009 refers only to revision of
rates and how the emoluments are to be
calculated for grant of benefit of such
revised
rates.
It
does
not
decide
entitlement. The Government Order dated
30.7.2007 decides entitlement towards
gratuity and it refers to such employees
who had been left out from being given
such facility of gratuity earlier. It was
decided by the Government to extend the
facility of gratuity to such employees on
their retirement but such facility was
extended only with prospective effect -
High Court found no good ground for
interference, however left it open to the
petitioner to challenge the GO dated
30.07.2007. (Para 20 and 21)
Writ petition disposed off. (E-1)
List of Cases cited:-
1. Writ A No. 40568 of 2016; Noor Jahan Vs St.
of U.P. & ors. decided on 04.01.2018
2. Writ A No. 17399 of 2019; Usha Rani Vs St.
of U.P. & ors. decided on 07.11.2019
3. Special Appeal Defective No. 40 of 2021; St.
of U.P & ors. Vs Usha Rani decided on
28.01.2021
4. Writ A No. 5108 of 2021; Prem Kumari Vs St.
of U.P. & ors. decided on 08.07.2020
5. Smt. Ranjana Kakkad Vs St. of U.P. & ors.;
2008 (10) ADJ 63
6. Writ-A No. 2948 of 2021; Sarwasti Gupta Vs
St. of U.P. & ors. decided on 16.09.2021

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner and perused the record of the
case.

2. None appears on behalf of B.S.A.
although name of Mr. B.P. Singh, learned
counsel for the B.S.A. has been shown in
the cause list.

3. It is the case of the petitioner that
he was working as Head Clerk in the Office
of Sub Deputy Basic Education Officer,
Azamgarh and retired on 31.3.2006 after
attaining the age of 60 years. The petitioner
had submitted his option to retire at the age
of 60 years, therefore, he was covered
under
the
Government
Order
dated
16.9.2009 which was issued accepting the
recommendation of the Pay Commission
revising the rates of pension/gratuity/family
pension and commutation of pension in
relation to teachers and employees of the
Basic
Education
Board
retiring
on
01.01.2006 or thereafter. Paragraph 4(1) of
the said government order provides that
such teaching/non-teaching employees who
retired before completing 10 years of
qualifying service though not entitled to get
8 All. Kedar Ram Vs. State of U.P. & Ors.
407
pension like government servants, would
be entitled to receive gratuity, if they
retired on attaining the age of 60 years.
Paragraph 4(4) of Government Order dated
16.09.2009 clarifies that teaching/nonteaching
employees
who
retired
on
1.1.2006 or thereafter would be governed
by Pension Rules which were applicable
before the issuance of the Government
Order
dated
16.9.2009.
Before
such
Government Order dated 16.9.2009 was
issued, there was Government order dated
30.7.2007 which sanctioned benefit of
gratuity to those working/left out nonteaching staff of different offices of the
Basic Education Board who had retired at
the age of 60 years. The Government had
decided to extend the benefit of gratuity to
all working/left out non-teaching staff who
had opted for retirement at the age of 60
years.

4. It has been argued that the
petitioner's claim for gratuity was not
accepted by the Finance Controller. The
petitioner, aggrieved thereby, filed petition
bearing Writ-A No. 69236 of 2013 (Kedar
Ram Vs. State of U.P. and another) which
was disposed of by a Co-ordinate Bench of
this Court vide order dated 17.12.2013 with
a direction to the Competent Authority to
consider
and
decide
the
petitioner's
representation by a speaking order. The
Finance Controller, Basic Education Board
had earlier given certain directions to the
Finance and Accounts Officer but then
decided the case of the petitioner himself. It
has been mentioned in the order dated
17.2.2014, challenged in this petition, that
the petitioner had retired as Head Clerk on
31.3.2006 and pension for the said post was
to be approved by the Assistant Basic
Education,
Director,
but
since
the
representation had been made to the
Finance Controller a direction was issued
by the High Court to the Finance Controller
for taking decision on the representation of
the petitioner. The petitioner was heard
personally on 27.1.2014, and he had based
his claim upon Government Order No.
1754/79-5-09-02/2009
of
Shiksha
Anubhag-5 dated 16.9.2009. The Finance
Controller in his order stated that such
order dated 16.9.2009 is not a Government
Order. It is a Circular/ Office Order issued
by the Shiksha Anubhag-5 for revision of
rates of pension/gratuity/family pension
and commutation of pension.

5. The case of the petitioner is
governed by Government Order dated
30.7.2007
which
refers
to
the
remaining/left out employees of the Board
and who had retired at the age of 60 years
and
extended
the
benefit
of
pension/gratuity
to
them
but
such
Government Order become applicable only
with effect from 30.07.2007 and the
petitioner had retired on 31.03.2006 much
before issuance of the Government Order
dated 30.7.2007, as a result of which,
gratuity is not payable to the petitioner. The
Office Order/Circular dated 16.9.2009 did
not create any substantive rights in favour
of the employees for getting gratuity. It
only revised the rates of pension/ family
pension/ commutation/ gratuity etc.

6. It is the case of the Respondents
that an employee who retired before
Government Order dated 30.07.2007, like
the petitioner herein (which made gratuity
applicable/admissible to employees of the
Basic
Education
Board)
and
which
government order is thus, prospective in its
effect, could not be given to the petitioner.

7. It is the case of the petitioner that
the order dated 16.09.2009 has been
wrongly referred to by the Finance
408 INDIAN LAW REPORTS ALLAHABAD SERIES
Controller as an Office Order issued by
Shiksha Anubhag-5. This is in violation of
observations made by this Court in its
various judgments which have referred to
the Government Order dated 16.09.2009
and had given benefit of such government
order to the employees for family pension.

8. Learned counsel for the petitioner
has placed reliance upon a judgment passed
by a Co-ordinate Bench of this Court in
Writ-A No. 40568 of 2016 (Noor Jahan
Vs. State of U.P. And 4 others). He has
also referred to a judgment in Writ-A No.
17399 of 2019 (Usha Rani Vs. State of
U.P. and 6 others) passed by a Co-ordinate
Bench of this Court decided on 07.11.2019.
Against such an order passed by the Single
Judge, a Special Appeal Defective No. 40
of 2021 (State of U.P and 6 others Vs.
Usha Rani) was filed which was also
disposed of vide order dated 28.01.2021.
Learned counsel for the petitioner has also
placed reliance upon order passed in WritA No. 5108 of 2021 (Prem Kumari Vs.
State of U.P. And 7 others) decided on
08.07.2020, wherein reliance was placed
upon the case of Usha Rani (supra).

9. It has been submitted by learned
counsel for the petitioner that this Court has
held in its various judgments as cited
hereinabove that the Government Order
dated 16.09.2009 provides for revision of
pension and other retiral benefits to the
retired employees of the Department of
Basic Education Board granting higher
benefits with effect from 01.01.2006. It had
also observed that although pension would
not be available to those employees who
had not completed 10 years of qualifying
service but such employees who retired
after attaining the age of 60 years shall be
entitled to gratuity and other retiral
benefits.

10. It is the case of the petitioner that
the petitioner had retired after attaining the
age of 60 years and that he had given an
option in this regard, therefore, it cannot be
said that government order dated 16.9.2009
is not applicable to him.

11. This Court has carefully perused
the judgment of this Court rendered in
Noor Jahan (supra) and finds that the
question decided by this Court related to
admissibility of family pension to the
petitioner whose husband had died at the
age of 57 years, i.e., before completing the
age of 60 years. The Circular/ Office Order
dated 16.09.2009 was interpreted strictly by
the State-respondents and gratuity was not
given to her. The Court had clarified that
under Clause 5 of the said Order, gratuity
would be payable to an employee who did
not complete qualifying ten years of service
and died early, therefore, she would still be
entitled for getting some retiral gratuity as
per the Office Order dated 16.09.2009.

12. It is evident from the judgment
rendered in Noor Jahan (supra) that there
was no issue framed with regard to whether
gratuity would be admissible as per the
Government Order dated 30.7.2007 or the
Office Order dated 16.09.2009. The Court
had assumed that the Office Order issued
by Shiksha Anubhag-5 is a Government
Order
making
death-cum-retirement
gratuity
and
other
retiral
benefits
admissible as per revised rates to retired
employees/dependants of such employees
of the Department of Basic Education
Board.

13. This Court has also considered the
judgment rendered in the case of Usha
Rani (supra) where reference has been
made to several judgments passed by Coordinate Benches of this Court making
8 All. Kedar Ram Vs. State of U.P. & Ors.
409
admissible payment of gratuity as per the
Office Order dated 16.9.2009 to such
employees who had not given option for
retirement at the age of 60 years, by placing
reliance upon judgment rendered in Noor
Jahan's case. The Court observed that even
if the daughter of the petitioner therein had
died during course of service before
completing the age of 60 years, the mother
would be entitled to get death-cumretirement gratuity as was admissible to her
daughter. Gratuity could not be denied only
on the ground that the employee concerned
had died before attaining the age of 60
years.

14. In the Special Appeal filed by the
State of U.P., the Division Bench was of
the opinion that as per the Office Order
dated 16.07.2009, the employees who had
given the option to continue in service
beyond the normal age of superannuation
of 58 years and for extension of service
with the condition that gratuity would be
denied to such employees would shall be
given gratuity as this Court in the case of
Smt. Ranjana Kakkad Vs. State of U.P.
and others reported in 2008 (10) ADJ 63
had extended the benefit of gratuity to such
employees.

15. In the case of Prem Kumari (supra)
also, the judgment rendered by a Co-ordinate
Bench of this Court in the case of Usha Rani
(supra) was relied upon. The writ petitioner's
husband had died before completing the age
of 60 years. Similar is the case of Sarwasti
Gupta Vs. State of U.P. And 5 others in
Writ-A No. 2948 of 2021, decided on
16.09.2021 where respondents had denied the
gratuity of petitioner's husband on the ground
that the husband of the petitioner had not
opted for retirement at the age of 60 years
and had died before reaching his age of
superannuation.

16. All the judgments cited by the
learned counsel for the petitioner rendered by
Co-ordinate Benches of this Court have
referred to the Office Order issued by
Shiksha Anubhag-5 as a Government Order.
However, no issue with regard to whether it
is a Government Order or Circular or Office
Order had been framed by any of the Coordinate Benches. The only question the Coordinate Benches had considered was if an
employee dies before attaining the age of 60
years, or if an employee retires without
giving option as required in the Government
Order, whether he or his dependants would
be entitled to any gratuity.

17. In the case of the petitioner he had
given an option for extension and he was
allowed to work till he attained the age of 60
years and retired thereafter.

18. Now, this Court has to consider
the contention raised by the Respondents in
the counter affidavit that the facility of
gratuity in favour of the employees like the
petitioner had been introduced for the first
time by the Government Order dated
30.7.2007. It was made operative with
immediate effect and would not be
applicable to such employees as the
petitioner who had retired prior to the
issuance of the said Government Order.

19. This court has considered the
language of Office Order dated 16.09.2009
which has been issued by the Shiksha
Anubhag-5 informing of the Government's
decision to accept the recommendations of
the Pay Committee, 2008 for revision of
rates of pension of teaching and nonteaching staff and their gratuity/family
pension and commutation of pension. It has
referred
to
revision
of
rates
of
pension/family
pension,
gratuity
and
commutation of pension as applicable to
410 INDIAN LAW REPORTS ALLAHABAD SERIES
those employees who had already been
made entitled to such facility and it gives
the
revised
rates
with
effect
from
01.07.2006. It also refers to such cases
where teaching and non-teaching staff had
already
been
assigned
pension/family
pension/death-cum-retiral
gratuity-cumcommutation of pension at rates which
were higher than the revised rates as
notified
in
the
Office
Order
dated
16.09.2009 and says that in such cases
revision shall not be done to the detriment
of the employee concerned. It refers to
detailed procedure as to how pension has to
be fixed on the basis of emoluments last
drawn by an employee. It also gives the
method of calculating emoluments on
revised rates. In Clause 4(1) of the said
Office Order, mention has also been made
of such teaching and non-teaching staff
who had retired before completing 10 years
of qualifying service being not entitled to
pension but at the same time, says that such
employees would still be entitled to revised
rates of gratuity under the extant Rules. It
also refers to reduction in the minimum
qualifying service for getting full pension
from 33 years to 20 years. Clause 4(4) of
the said Office Order, referring to Clauses
4(2) and 4(3), states that such facility
would be available to teaching and nonteaching staff who had retired on 1.1.2006
or thereafter. Those who had retired before
1.1.2006,
would
get
pension/family
pension/gratuity
and
commutation
of
pension at the rates that were admissible
before the issuance of the said order.

20. This Court after careful perusal
of Office Order dated 16.09.2009 finds
that indeed it refers only to revision of
rates and how the emoluments are to be
calculated for grant of benefit of such
revised
rates.
It
does
not
decide
entitlement. The Government Order dated
30.7.2007
issued
by
the
Principal
Secretary, Government of U.P. decides
entitlement towards gratuity and it refers
to such employees who had been left out
from being given such facility of gratuity
earlier. It was decided by the Government
to extend the facility of gratuity to such
employees on their retirement but such
facility
was
extended
only
with
prospective effect.

21. Having heard the learned counsel
for the petitioner and having perused the
entire material available on record, this
Court finds no good ground to show
interference in the order passed by the
Finance Controller dated 17.2.2014 at this
stage but leaves it open to the petitioner to
approach this Court challenging the
Government Order dated 30.7.2007 or any
other Government Order which decides
the entitlement of the petitioner to get
service gratuity by filing a fresh writ
petition in this regard.

22. The petition stands disposed off
accordingly.
----------
(2022) 8 ILRA 410
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 9412 of 2022

Bank of Baroda ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sandeep Kumar Singh