# Sehrun Nisha v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Writ-A No.6402 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sehrun-nisha-v-state-of-u-p-ors-51969
- **Pages:** 4

## Headnote

(A) Service Law - Gratuity - Entitlement to
- Gratuity is payable based on completed
years of service, not age of retirement -
premature retirement does not disentitle a
teacher to gratuity - 'treading the beaten
path' - utter lack of application of mind and
non-understanding of principle. (Para - 7)

Petitioner
(teacher)
opted
for
voluntary
retirement at the age of 57 years - District
Minority Welfare Officer rejected petitioner's
claim to gratuity - citing that - gratuity payable
only to those who opt to retire at the age of 60
years or die before attaining that age - decision
challenged - ground - entitled to gratuity based
on their completed years of service. (Para - 1)

HELD: - Petitioner entitled to gratuity despite
retiring at 57 years. The District Minority Welfare
Officer's interpretation of the rules was flawed.
Directed respondents to sanction and calculate
gratuity to the petitioner taking into account the
total number of completed years of service
rendered by him before prematurely retiring
within a specified timeframe. Impugned order
quashed. (Para - 10)

Writ Petition Allowed. (E-7)

## Text

5 All. Sehrun Nisha Vs. State of U.P. & Ors.
1117
बस्ती र्ुडेे़रर बदियर
दिनरांक 25-6-2015

13. The Manager of the Institution has
also sent a representation to the District Basic
Education Officer on 11.5.2018 stating that no
resolution was ever passed by the managing
committee to initiate the process of recruitment;
applications sent by Smt. Madhubala Singh and
Ashutosh Prasad Singh are available on record,
but their educational certificates are not available
in the office; quality point marks of other
applicants namely Ajay Kumar Singh and
Vandana Mishra are higher than that of petitioner
but educational certificates of these persons are
also not available. Maximum marks at the
interview had been given to the petitioner; all
other candidates, who secured higher quality
marks have been shown absent; the manager has
also specified that permission for initiating the
recruitment as well as approval of petitioner's
appointment has been granted by District Basic
Education Officer Rakesh Singh. His father-inlaw is Rajendra Singh. Brother of Rajendra
Singh is Ravindra, who is married in village
Rohana. Petitioner's husband is Dharmendra
Pratap Singh. Real sister of Dharmendra Pratap
Singh (husband of writ petitioner) is married to
Ravindra, who is the real brother of father-in-law
of Rakesh Singh.

14. Learned Single Judge has noticed
the fact that disciplinary inquiry was initiated
against the then District Basic Education Officer
Rakesh Singh and Charge No. 5 relating to
appointment being offered to his relatives,
including the present petitioner, has been proved.
Punishment order has also been passed against
Rakesh Singh on 29.5.2017.

15. In the facts of the case, we find that
the process of recruitment has been initiated in
undue hot haste without any resolution passed by
the managing committee for initiating the
process of recruitment on the post of
Headmaster.
Admittedly
the
appointing
authority is the committee of management and in
the absence of its authorisation the process of
recruitment would be without authority of law.
The process was otherwise initiated by the
Deputy Manager, even before his signatures
were formally attested as Manager. The
recruitment process does not appear to be fair
and transparent, inasmuch as, all persons with
higher quality point marks are shown absent and
two of the candidates, who had applied for
appointment, have not been permitted to take
part in the recruitment. Allegation of favouritism
otherwise surfaces against the then District Basic
Education Officer. Even if we accept the
contention
of
the
petitioner
that
the
advertisement for appointment was valid
notwithstanding the fact the qualification and
age are not specified, yet we find that the
recruitment process cannot be said to be wholly
transparent. In such circumstances, the decision
of the District Basic Education Officer to cancel
the approval of petitioner's appointment and
dismissal of the writ petition by the learned
Single Judge would not require any interference
in the present appeal.

16. The appeal consequently fails and
is dismissed.
----------
(2024) 5 ILRA 1117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No.6402 of 2024

Sehrun Nisha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.B. Singh
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
C.S.C.

(A) Service Law - Gratuity - Entitlement to
- Gratuity is payable based on completed
years of service, not age of retirement -
premature retirement does not disentitle a
teacher to gratuity - 'treading the beaten
path' - utter lack of application of mind and
non-understanding of principle. (Para - 7)

Petitioner
(teacher)
opted
for
voluntary
retirement at the age of 57 years - District
Minority Welfare Officer rejected petitioner's
claim to gratuity - citing that - gratuity payable
only to those who opt to retire at the age of 60
years or die before attaining that age - decision
challenged - ground - entitled to gratuity based
on their completed years of service. (Para - 1)

HELD: - Petitioner entitled to gratuity despite
retiring at 57 years. The District Minority Welfare
Officer's interpretation of the rules was flawed.
Directed respondents to sanction and calculate
gratuity to the petitioner taking into account the
total number of completed years of service
rendered by him before prematurely retiring
within a specified timeframe. Impugned order
quashed. (Para - 10)

Writ Petition Allowed. (E-7)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the order dated 02.12.2023 passed
by the District Minority Welfare Officer,
Prayagraj, rejecting the petitioner's claim to
gratuity on the ground that the petitioner has
sought voluntary retirement at the age of
fifty-seven years, whereas gratuity is
payable only to those who opt to retire at the
age of sixty years (as distinguished from
those who opt to retire at the age of sixtytwo years) and also in cases of teachers, who
die before attaining the age of sixty years.

2. It is submitted that according to
paragraph no. 4(1) of the Government Order
dated 14.12.2011, it is provided that like
civil service, governed by Article 474 of the
Civil Service Regulations, those who do not
complete ten years of qualifying service, are
not entitled to pension but if they opt to
retire at the age of sixty years, they are
entitled to gratuity under the rules framed
for the teachers serving in the aided
Intermediate Colleges.

3. On 26.04.2024, this Court passed
the following order:

"The petitioner opted for voluntary
retirement at the age of 57 and has been
denied his gratuity by the District Minority
Welfare Officer on ground that since he had
not filled up the option to retire at 60, which
is the entitling age to receive gratuity, or 62
years, which disentitles, the petitioner is not
entitled to gratuity.
Prima
facie
the
reasoning
is
absolutely flawed.
Mr. J. N. Maurya, learned Chief
Standing Counsel states at this juncture that
one opportunity be provided to the District
Minority Welfare Officer, Prayagraj to
reconsider the matter.
A week's time is granted for the
purpose.
Adjourned to 07.05.2024 as fresh. "

4. An opportunity was provided to
the District Minority Welfare Officer,
Prayagraj to re-consider the matter. The
District Minority Welfare Officer, Prayagraj
has skirted the opportunity granted to him by
this Court. He has issued a memo dated
03.05.2024, where the stand taken is that
gratuity is payable only to such teachers of
the aided Intermediate Institutions, who opt
to retire at the age of sixty years. He has
referred to an objection in this regard raised
by the Joint Director (Pension) Prayagraj
Division, Prayagraj vide his memo dated
5 All. Sehrun Nisha Vs. State of U.P. & Ors.
1119
09.09.2020 annexed as Annexure no. 3 to his
memo dated 03.05.2024, where it is
observed:

5. It is on the basis of the aforesaid
note put up by the Joint Director (Pension),
Prayagraj Division, Prayagraj that the
District Minority Welfare Officer, Prayagraj
has refused to re-consider his stand that
gratuity may be payable to the petitioner
though he has prematurely elected to retire
at the age of 57 years 4 months and 16 days.
For one he may clarify that the age of a
retiring employee is never to be reckoned in
terms of days and months. It is to be
reckoned in terms of the completed age.
Thus, so long as an employee does not turn
fifty-eight, he is to be regarded as fiftyseven years old. The petitioner, therefore, is
an employee, who has chosen to retire at the
age of fifty-seven years. prematurely.

6. The Government Orders, under
reference or rules, which these orders reflect
or amplify, give effect to a scheme wherein
a teacher, who serves for an extended tenure
up to sixty-two years is deprived of his
gratuity to which he would be entitled, if he
were to retire at the conventional age of
sixty years. He looses gratuity because he
serves for two years more beyond the
conventional years.
7. Here is a case, where the
petitioner has chosen to retire at the age of
fifty-seven years, prematurely. The option to
retire at the age of sixty years is to be
understood in contra-distinction to the
option to retire at the unconventional and the
higher age of sixty-two; it is not to be
understood as an option vesting a teacher
with a right to receive gratuity only if he
elects to retire at sixty. Retirement at sixty
years is not an entitling fact, which leads the
employee to acquire a right to receive
gratuity, which he otherwise does not have.
An employee gets his right to gratuity
according to the number of the years that he
serves. Rather, if he chooses to serve, as
already said, beyond the conventional age of
sixty years, he is divested of that right for the
extra remuneration of two years in regular
service that he receives. The interpretation,
based on the relevant Government Orders by
the Joint Director (Pension), Prayagraj
Division,
Prayagraj
and
the
District
Minority Welfare Officer, Prayagraj, is the
product of what is conventionally called
'treading the beaten path', which shows utter
lack of application of mind and nonunderstanding of principle.

8. In future, the Additional Chief
Secretary (Secondary Education), U.P.,
Lucknow will bear these remarks of ours in
mind and pass appropriate orders so that
these kind of perverse interpretations are not
placed by the officials functioning in the
Department of Secondary Education to the
prejudice of teachers vis-a-vis their valuable
right to receive gratuity to which they are
otherwise entitled.

9. The Joint Director (Pension),
Prayagraj Division, Prayagraj and the
District Minority Welfare Officer, Prayagraj
shall also take note of this order and will not
repeat this kind of interpretation in future, if
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
a similar set of rights were to arise for
consideration.

10. In the result, this petition
succeeds and is allowed. The impugned
order dated 02.12.2023, passed by the
District Minority Welfare Officer, Prayagraj,
is hereby quashed. A mandamus is issued to
the respondents to sanction and calculate
gratuity to the petitioner, of course, taking
into account the total number of completed
years of service rendered by him before
prematurely retiring. The reckoning of the
petitioner's entitlement to gratuity shall be
done within a period of fifteen days hence
and gratuity determined shall be paid to the
petitioner within next fifteen days thereafter.

12. There shall be no order as to
costs.

13. Let this order be communicated
to
the
Additional
Chief
Secretary
(Secondary Education), U.P., Lucknow
through the Civil Judge (Senior Division),
Lucknow, the Joint Director (Pension),
Prayagraj Division, Prayagraj and the
District Minority Welfare Officer, Prayagraj
through the Civil Judge (Senior Division),
Allahabad by the Registrar (Compliance)
within 48 hours.
----------
(2024) 5 ILRA 1120
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 15485 of 2023

Aman Pathak ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Rajesh Kumar Yadav

Counsel for the Opp. Parties:
C.S.C., Ravindra Singh

(A) Service Law - Claim for compassionate
appointment - The U.P. Cooperative Cane
Service Regulations, 1975 - The Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules,
1974
-
existence
of
small
agricultural holdings does not necessarily
mean that the family has a steady income -
Objectivity
in
administrative
decision
making - Administrative decisions should
be
made
objectively,
without
being
influenced
by
judicial
commands
or
motivated by malice - Administrators must
not panic or retaliate when faced with a
judicial command asking them to perform
their duties.(Para - 12,14)

(C) Service Law - Comparative income
assessment/Relevant
factors
for
compassionate appointment (i) Income of
the deceased at the time of death (ii)
Family's income after demise from various
sources
(iii)
Terminal
benefits
(iv)
Liabilities (v) Age, dependency, and marital
status of family members (vi) Income from
other sources - authorities should prioritize
the financial condition of the deceased's
family at the time of their death as the
primary consideration. (Para -9 ,10)

Petitioner's father was a Stock Clerk in the
Establishment - passed away - minor - applied for
compassionate appointment - after attaining
majority - State Authority rejected petitioner's
claim for compassionate appointment - District
Cane Officer also rejected petitioner's claim.
(Para - 1 to 5)

HELD: - State Authority and District Cane Officer
rejected petitioner's claim for compassionate
appointment due to incomplete and inaccurate
information.
Decision
was
based
on
the
petitioner's delay due to his minority status and
the financial crisis his family faced after his
father's death. Order quashed - Remitted to State
Authority to decide afresh.(Para - 8,13,15)