# Smt. Asha Lata Chaubey v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-04
- **Case number:** Writ A No. 17699 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asha-lata-chaubey-v-state-of-u-p-ors-51736
- **Pages:** 9

## Headnote

Service Law - Payment of Gratuity -
Entitlement
on
Voluntary
Retirement
-
Petitioner,
an
Assistant
Teacher
in
a
government-aided
Junior
High
School,
challenged the non-payment of gratuity upon
her voluntary retirement at age 59 years, 2
months, and 10 days - Held, the petitioner's
application
for
voluntary
retirement
on
29.06.2021, accepted by the District Basic
Education Officer on 15.01.2022, constituted an
option to retire before age 60, entitling her to
gratuity under Fundamental Rule 56(e) of the
Financial Handbook and Government Order
dated 31.07.2001 - The requirement to submit
an option for retirement at age 60 to receive
gratuity does not apply when a teacher retires
voluntarily before 60, as supported by judicial
precedents
and
Government
Order
dated
03.02.2023. (Paras 8, 19, 20, 24, 26, 27)

Service Law - Gratuity for Teachers Dying
or Retiring Before Age 60 - The respondents
argued that the petitioner was not entitled to
gratuity due to not opting for retirement at age
60 - Held, judgments in Noor Jahan (Writ-A
No. 40568 of 2016) and Usha Rani (Writ-A No.
17399 of 2019), along with Government Order
dated 03.02.2023, clarify that teachers dying
before age 60 without submitting an option for
retirement at 60 are entitled to gratuity - By
extension, a teacher who voluntarily retires
before age 60, as in the petitioner's case,
cannot be denied gratuity, as her voluntary
retirement application is akin to an option to
retire early. (Paras 11, 21, 22, 23, 24, 25, 26)

Service Law - Directions for Payment and
Interest - The Court found the denial of
gratuity to the petitioner unjustified - Held, the
respondents are directed to calculate and pay
the petitioner's gratuity based on her length of
service within two months - Additionally, the
District Basic Education Officer, Varanasi, must
pass a reasoned order on the admissibility of
interest for delayed payment within three
months - The applicability of the Payment of
Gratuity Act, 1972, was left open as the
petitioner's entitlement was upheld under
existing St. policies. (Paras 27, 28, 29)

Writ Petition Allowed .

Respondents Directed to Pay Gratuity and
Decide on Interest.

List of Cases Cited:

## Text

672 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 672
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2024
BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 17699 of 2023

Smt. Asha Lata Chaubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C.

Service Law - Payment of Gratuity -
Entitlement
on
Voluntary
Retirement
-
Petitioner,
an
Assistant
Teacher
in
a
government-aided
Junior
High
School,
challenged the non-payment of gratuity upon
her voluntary retirement at age 59 years, 2
months, and 10 days - Held, the petitioner's
application
for
voluntary
retirement
on
29.06.2021, accepted by the District Basic
Education Officer on 15.01.2022, constituted an
option to retire before age 60, entitling her to
gratuity under Fundamental Rule 56(e) of the
Financial Handbook and Government Order
dated 31.07.2001 - The requirement to submit
an option for retirement at age 60 to receive
gratuity does not apply when a teacher retires
voluntarily before 60, as supported by judicial
precedents
and
Government
Order
dated
03.02.2023. (Paras 8, 19, 20, 24, 26, 27)

Service Law - Gratuity for Teachers Dying
or Retiring Before Age 60 - The respondents
argued that the petitioner was not entitled to
gratuity due to not opting for retirement at age
60 - Held, judgments in Noor Jahan (Writ-A
No. 40568 of 2016) and Usha Rani (Writ-A No.
17399 of 2019), along with Government Order
dated 03.02.2023, clarify that teachers dying
before age 60 without submitting an option for
retirement at 60 are entitled to gratuity - By
extension, a teacher who voluntarily retires
before age 60, as in the petitioner's case,
cannot be denied gratuity, as her voluntary
retirement application is akin to an option to
retire early. (Paras 11, 21, 22, 23, 24, 25, 26)

Service Law - Directions for Payment and
Interest - The Court found the denial of
gratuity to the petitioner unjustified - Held, the
respondents are directed to calculate and pay
the petitioner's gratuity based on her length of
service within two months - Additionally, the
District Basic Education Officer, Varanasi, must
pass a reasoned order on the admissibility of
interest for delayed payment within three
months - The applicability of the Payment of
Gratuity Act, 1972, was left open as the
petitioner's entitlement was upheld under
existing St. policies. (Paras 27, 28, 29)

Writ Petition Allowed .

Respondents Directed to Pay Gratuity and
Decide on Interest.

List of Cases Cited:
1. Noor Jahan Vs St. of U.P. & ors., Writ-A No.
40568 of 2016, decided on 04.01.2018

2. Usha Rani Vs St. of U.P. & ors., Writ-A No.
17399 of 2019, decided on 07.11.2019

3. Smt. Omwati Vs St. of U.P. & ors., Writ-A No.
8679 of 2018, decided on 09.03.2018

4. Smt. Brijesh Vs St. of U.P. & ors., Writ-A No.
6049 of 2019, decided on 26.04.2019

5. Smt. Mala Tripathi Vs St. of U.P. & ors.,
Service Single No. 6173 of 2014, decided on
05.08.2019

6. Renu Gupta Vs St. of U.P. & ors., Writ-A No.
14397 of 2019, decided on 24.10.2019

7. Smt. Nazma Khatoon Vs St. of U.P. & ors.,
Special Appeal (Defective) No. 430 of 2016

8. Smt. Ranjana Kakkar Vs St. of U.P. & ors.,
2008 (10) ADJ 63 (DB)

(Delivered by Hon'ble Manjive Shukla, J.)
3 All. Smt. Asha Lata Chaubey Vs. State of U.P. & Ors.
673

1. Heard Sri Siddharth Khare, learned
counsel appearing for the petitioner and
learned Standing Counsel appearing for the
Respondents No. 1 to 4.

2. Petitioner is aggrieved by nonpayment of gratuity on her retirement
therefore, has filed this writ petition
praying therein for a direction from this
court thereby commanding the respondents
to pay her gratuity along with interest.

3. Brief facts of the case are that Sri
Ram Janki Vidya Mandir Balika Vidyalaya,
Rajapur, Varanasi (hereinafter referred to as
"school") is recognized by U.P. Basic
Education Board and is receiving grant-inaid from the Government of U.P. Petitioner
was appointed on the post of Assistant
Teacher in the school vide appointment
order dated 04.09.1989 and she joined on
her post in the month of September, 1989.

4. Petitioner continued to work on her
post to the utmost satisfaction of her
superiors. Petitioner's date of birth is
20.01.1963.
Petitioner
submitted
an
application for voluntary retirement which
was allowed by the District Basic Eduction
Officer
vide
order
dated
15.01.2022
thereby petitioner has been permitted to
retire
w.e.f.
31.03.2022.
Pursuant
to
aforesaid order dated 15.01.2022, petitioner
has retired from service on 31.03.2022 on
completion of 59 years 2 months and 10
days of age.

5. After retirement of the
petitioner, papers for payment of postretiral dues were duly forwarded by the
Manager of the Committee of Management
of the school. Petitioner has been paid all of
her post retiral dues except gratuity.

6. Petitioner in her writ petition has
stated that she has been orally told by the
Respondent No. 3 that since she has not
submitted option to retire at the age of 60
years which is mandatory for payment of
gratuity, she is not entitled for the payment
of gratuity.

7. Learned counsel appearing for the
petitioner has submitted that initially State
Government has issued a Government
Order on 23.11.1994 whereby it was
provided that the age of retirement of a
teacher working in a Junior High School is
60 years but those teachers who submit
their option to retire at the age of 58 years
shall be entitled for payment of gratuity.
Thereafter
State
Government
issued
another Government Order on 10.06.2002
whereby it has been provided that teachers
can submit option to retire at the age of 58
years, one year before the date of his
retirement i.e. on 1st of July of the
Academic Session in which he has to retire
and further if a teacher gives option to
retire at the age of 58 years, he can change
his option till the date of his retirement. It
has further been submitted that as per her
date of birth, petitioner was to complete 60
years of age on 19.01.2023 and 62 years of
age on 19.01.2025. Petitioner about two
years before the date of completion of 60
years of age submitted an application on
29.06.2021 whereby she requested the
District Basic Education Officer to permit
her to voluntary retire from service.

8. Learned counsel appearing for the
petitioner has argued that the application
for voluntary retirement by the petitioner
on 29.06.2021 was in-fact her option to
retire from service even before completion
of 60 years of service and the said
application/option has been accepted by the
District Basic Education Officer, Varanasi
vide his order dated 15.01.2022 and once
petitioner has been permitted to retire
674 INDIAN LAW REPORTS ALLAHABAD SERIES
before completion of 60 years of service,
she is entitled for the payment of gratuity.

9. Learned counsel appearing for the
petitioner has invited attention of this court
towards provisions made in Fundamental
Rule 56(e) of the Financial Handbook
wherein it is provided that if a government
servant retires from service, he shall be
entitled for payment of pension and other
retiral benefits and thus has submitted
before this court that once petitioner has
been permitted to retire from service, she
cannot be deprived of her right to receive
amount of gratuity. Learned counsel
appearing for the petitioner has further
invited attention of this court towards
Government
Order
dated
31.07.2001
whereby it has been clarified that if a
government servant is permitted voluntary
retirement from service under Fundamental
Rule 56(c) of the Financial Handbook, he
will be entitled for payment of pension and
other post retiral dues including gratuity as
admissible under the rules.

10. Learned counsel appearing for the
petitioner has argued that there is no
difference in between retirement and
voluntary retirement as in both the cases,
employee retires from service and if after
retirement under the rules, he is entitled for
retiral benefits, he would also be entitled
for the admissible retiral dues on his
voluntary retirement.

11. Learned counsel appearing for the
petitioner has further argued that so far as
the case of respondents that since petitioner
did not opt to retire at the age of 60 years
therefore, she is not entitled for payment of
gratuity, is concerned, the issue of those
teachers who did not opt to retire at the age
of 60 years and died prior to completion of
60 years age, has already been considered
by this Court vide judgement and order
dated 04.01.2018 rendered in Writ-A No.
40568 of 2016 (Noor Jahan Vs. State of
U.P. and Others) and judgement and order
dated 7.11.2019 rendered in Writ-A No.
17399 of 2019 (Usha Rani Vs. State of U.P.
and Others) wherein it has been held that if
a teacher dies before completion of 60
years of age and has not submitted option
to retire at the age of 60 years, he is entitled
for
the
payment
of
gratuity.
State
Government has also issued a Government
Order on 03.02.2023 wherein it has been
provided that if a teacher has died before
completion of 60 years of age and has not
submitted option to retire at the age of 60
years, he will be entitled for the gratuity.
Learned
counsel
appearing
for
the
petitioner has also argued that once the
State Government itself has provided that a
teacher who has not opted to retire at the
age of 60 years and he dies before
completion of 60 years of age, is entitled to
payment of gratuity, then petitioner cannot
be denied the payment of gratuity as she
submitted
application
for
voluntary
retirement and therefore opted to retire
before completion of 60 years of age and
the said option has been duly accepted by
the District Basic Education Officer,
Varanasi therefore, she is a retired teacher
and is entitled for payment of all the retiral
dues
including
gratuity
which
are
admissible to retired teachers working in
the government aided Junior High Schools.

12. Learned counsel for the petitioner
in alternate has also advanced argument
that if at all petitioner is not entitled for
payment of gratuity as admissible to retired
teachers of the Junior High Schools, then
petitioner's case will be covered by the
provisions of Payment of Gratuity Act 1972
which mandate for payment of gratuity to
an employee.
3 All. Smt. Asha Lata Chaubey Vs. State of U.P. & Ors.
675

13. Learned counsel for the
petitioner has thus concluded his arguments
and has submitted that non-payment of
gratuity to the petitioner cannot be justified
and therefore, it would be appropriate that a
direction be issued by this Court to the
respondents
to
pay
gratuity
to
the
petitioner.

14. Per-contra, learned Standing
Counsel appearing for the Respondents No.
1 to 4 has submitted that the State
Government has issued Government Orders
from time to time under which any teacher
who wants to retire at the age of 60 years
with gratuity was required to submit option
and only thereafter he will be entitled for
payment of gratuity whereas petitioner has
not submitted any such option and
voluntarily retired from service before
completion of 60 years of age therefore, is
not entitled for payment of gratuity.

15.

Learned
Standing
Counsel
appearing for the Respondents No. 1 to 4
has further argued that so far as the
Government Order dated 3.02.2023 is
concerned, it is confined only to those
teachers who did not submit option for
retiring at the age of 60 years with gratuity
and have died before completion of the age
of 60 years whereas petitioner has availed
the benefit of voluntary retirement from
service before completion of 60 years of
age as such she is not entitled for payment
of gratuity.

16.

Learned
Standing
Counsel
appearing for the Respondents No. 1 to 4
has thus concluded his arguments by
submitting that petitioner is not entitled for
payment of gratuity and the writ petition
filed by the petitioner being misconceived
is liable to be dismissed by this Court.

17. I have considered rival
arguments
advanced
by
the
learned
counsels appearing for the parties and I find
that initially Government of U.P. issued a
Government Order on 23.11.1994 whereby
it was provided that teachers working in the
Junior High Schools recognized by the U.P.
Basic Education Board and receiving grantin-aid from the Government of U.P. are to
retire after attaining the age of 60 years but
they can submit option to retire at the age
of 58 years with gratuity. Later on the State
Government issued another Government
Order on 04.02.2004 whereby the age of
retirement of teachers has been raised to 60
years with gratuity and 62 years without
gratuity.

18. The Government of U.P. vide
Government Order dated 10.06.2002 has
permitted the teachers to submit the option
for retirement at the age of 58 years one
year before the date of retirement i.e. till
1st of July of the Academic Session in
which he has to retire.

19. This court finds that petitioner has
not submitted option to retire at the age of
60
years
rather
she
submitted
an
application on 29.06.2021 for voluntary
retirement and pursuant to said application,
she has retired on 31.03.2022 i.e. on
completion of age of 59 years 2 months and
10 days i.e. before the date she would have
completed
the
age
of
60
years.
Fundamental Rule 56(e) of the Financial
Handbook provides that if a government
servant retires, he is entitled for retiral dues
admissible under the rules and further State
Government has also issued a Government
Order dated 31.07.2001 whereby it has
been provided that even in the case of
voluntary retirement, government servant
shall be entitled for retiral dues as per rules.
676 INDIAN LAW REPORTS ALLAHABAD SERIES

20. This court further finds that
petitioner
has
opted
for
voluntary
retirement and thereby retired before
completion of 60 years of age therefore, in
view
of
the
provisions
made
in
Fundamental Rule 56(e) of the Financial
Handbook read with Government Order
dated 31.07.2001, she is entitled for all the
retiral dues including gratuity admissible to
her under the rules.

21. There is only one issue in this
matter which needs consideration by this
Court as to whether a teacher will be
entitled for payment of gratuity only if he
submits his option to retire at the age of 60
years. This Court finds that the State
Government though under the Government
Orders has provided that a teacher has to
submit his option to retire at the age of 60
years with gratuity but in the cases where
the teachers died before completing 60
years of age and have not opted to retire at
the age of 60 years, this Court has
considered the issue in detail and has held
that even if the teachers before their death
have not submitted option to retire at the
age of 60 years they shall be entitled for
payment of gratuity.

22. In the aforesaid regard, relevant
paragraphs of the judgement and order
dated 4.01.2018 rendered in Writ-A No.
40568 of 2016 and the judgement and order
dated 7.11.2019 rendered in Writ-A No.
17399 of 2019 are extracted as under:

Writ-A No. 40568 of 2016

"Learned
counsel
for
the
petitioner submits that the order impugned
is wholly arbitrary, inasmuch as under the
relevant scheme for payment of gratuity, the
claim of petitioner's husband is otherwise
covered, and the Government Order dated
16.9.2009 does not curtail the payment of
gratuity to those employees, who have died
before attaining the age of 60 years.

Sri R.B. Yadav, learned counsel
for the respondent nos.3 and 4, submits that
the denial of gratuity to petitioner is in
accordance with the Government Order.

I have heard learned counsel for
the parties, and have perused the materials
brought on record.

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
3 All. Smt. Asha Lata Chaubey Vs. State of U.P. & Ors.
677
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. "

Writ-A No. 17399 of 2019

"Learned
counsel
for
the
petitioner submitted that daughter of
petitioner was initially appointed as
Assistant Teacher on 4.12.1999 and joined
his services on 7.12.1999 in Primary
School, Mallamai, Badaun. Unfortunately,
daughter of petitioner died during the
course of service on 28.8.2018. After the
death of her daughter petitioner applied for
terminal dues. The amount of gratuity was
refused on the ground that her daughter
has not filled up option for retirement at the
age of 60 years. It is further submitted that
as
per
Government
Order
dated
16.09.2009, petitioner's daughter is fully
entitled for gratuity even in case if he has
not given option for retirement at the age of
60 years, therefore, the order impugned is
wholly arbitrary, inasmuch as under the
relevant scheme of payment of gratuity, the
claim of petitioner's daughter is covered
and
the
Government
Order
dated
16.09.2009 does not curtail the payment of
gratuity to those employees, who have died
before attaining the age of 60 years.

In support of his contention, he
has placed reliance upon several judgments
of this Court as well as Lucknow Bench of
this Court passed in Writ-A No. 40568 of
2016 ( Noor Jahan vs. State of U.P. and 4
others) decided on 4.1.2018, Writ-A No.
8679 of 2018 (Smt. Omwati Vs. State of
U.P. and 3 others) decided on 9.3.2018,
Writ-A No. 6049 of 2019 (Smt. Brijesh vs.
State of U.P. and 5 others) decided on
26.04.2019 and Service Single No. 6173 of
2014 ( Smt. Mala Tripathi vs. State of U.P.
Through Prin. Secy. Secondary Edu. Lko.
& Ors.) decided on 5.8.2019. He next
submitted that this controversy was again
before this Court in Writ-A No. 14397 of
2019 (Renu Gupta Vs. State of U.P. and 5
others) in which the Court relying upon the
aforesaid judgments allowed the writ
petition vide order dated 24.10.2019.

On the other hand, learned
standing counsel as well as Sri Chandan
Agarwal, learned counsel for respondent
Nos. 4 to 7 submitted that denial of gratuity
of petitioner's husband is in accordance
with Government order, therefore, there is
no illegality in the impugned order, but
could not dispute the aforesaid fact.

I have considered the rival
submissions raised by counsel for the
parties and perused the record as well as
judgments relied upon.

Similar issue was considered by
this Court in the matter of Noor Jahan
(Supra) in which this Court vide order
dated 04.01.2018 has clearly held that
Government Order dated 16.09.2009 does
not provide any bar for payment of gratuity
in case petitioner's husband had not given
option for retirement at the age of 60 years.
Relevant paragraphs of the said judgment
is quoted below:-

"Learned
counsel
for
the
petitioner submits that the order impugned
is wholly arbitrary, inasmuch as under the
relevant scheme for payment of gratuity, the
claim of petitioner's husband is otherwise
covered, and the Government Order dated
16.9.2009 does not curtail the payment of
gratuity to those employees, who have died
before attaining the age of 60 years.

Sri R.B. Yadav, learned counsel
for the respondent nos.3 and 4, submits that
the denial of gratuity to petitioner is in
accordance with the Government Order.
678 INDIAN LAW REPORTS ALLAHABAD SERIES

I have heard learned counsel for
the parties, and have perused the materials
brought on record.

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."

In the matter of Smt. Omwati
(Supra), Court had dealt for payment of
interest upon delayed payment of gratuity
and held that petitioner is entitled for
interest. Relevant paragraph of the said
judgment is quoted below:-

"The
only
other
issue
that
survives for consideration is whether, the
petitioner is entitled to payment of interest
on the delayed payment of gratuity.

This aspect has been dealt with
by Division Bench of this Court in Special
Appeal (Defective) No.430 of 2016, Smt.
Nazma Khatoon Vs. State of U.P. and
others where a learned Single Judge had
rejected the prayer for interest on delayed
payment of gratuity. However, the Division
Bench opined that interest is a necessary
corollary to the retention of money by
another person. It is neither compensatory
nor penal in nature. It was so held, upon an
earlier Division Bench decision in Smt.
Ranjana Kakkar W/O Late Prof. Amarnath
Kakkar Vs. State of Uttar pradesh and
others, 2008(10) ADJ 63 (DB).

The Division Bench in Smt.
Nazma Khatoon (supra) went on to award
8% interest on the gratuity payable.

Counsel for the petitioner
has also relied upon the Government order
No.SA-3-1901/10-2002-971/80
dated
30.10.2002, which provides for payment of
interest on delay in payment of gratuity and
post retiral benefits beyond a period of 3
months from the date they are payable.

Under the circumstances, this
Court considers it appropriate to award the
same rate of interest on the delayed
payment as has been awarded by the
Division
Bench
in
Smt.
Nazma
Khatoon(supra), the rate being 8%.

For the reasons given above, this
writ petition is allowed. The impugned
3 All. Smt. Asha Lata Chaubey Vs. State of U.P. & Ors.
679
order passed by the District Inspector of
Schools, Sambhal dated 01.01.2018 is
hereby set aside. The respondents are
directed to calculate the gratuity payable to
the petitioner along with 8% interest
thereon by a speaking order and to ensure
payment of the said amount to the
petitioner within a period of six weeks from
the date, a certified copy of this order is
filed before him."

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. The petitioner shall also
be entitled to interest at the rate of 8% per
680 INDIAN LAW REPORTS ALLAHABAD SERIES
annum, from the date of filing of the
application till the amount is actually
disbursed.

Writ petition is, accordingly,
allowed.

No order as to costs."

23. After the aforesaid judgements of
this Court, State Government itself has
issued a Government Order on 03.02.2023
whereby it has been provided that if a
teacher has not submitted his option to
retire at the age of 60 years and he dies
before completion of 60 years of age, he is
entitled for payment of gratuity.

24. Once a teacher who has not
submitted option to retire at the age of 60
years with gratuity and dies before
completion of 60 years of age has been
held to be entitled for payment of gratuity,
there cannot be any reason to deny the
payment of gratuity to a teacher who
submits option to retire before completion
of 60 years of age and said option is duly
accepted by the competent authority.

25. The State Government itself has
provided that if a teacher has not opted to
retire at the age of 60 years with gratuity
and demits the office due to his death
before completing 60 years of age, he is
entitled for payment of gratuity meaning
thereby that those teachers who retire
before completion of 60 years of age
cannot be denied the benefit of gratuity
only because they have not submitted
option to retire at the age of 60 years.

26. It is also worth consideration of
this court that petitioner's application for
voluntary retirement is in-fact an option
given by her to retire from service before
completion of 60 years of age and once the
State Government by way of Government
Order dated 03.02.2023 has provided that
the teachers who demit the office due to
death without submitting option to retire at
the age of 60 years are entitled for payment
of gratuity then the petitioner's case stands
at a better footing as she has in-fact opted
to retire before completion of 60 years of
age, therefore, she cannot be denied the
gratuity.

27. In view of the aforesaid reasons,
this writ petition is allowed. Respondents
No. 3 and 4 are directed to calculate the
gratuity payable to the petitioner on the
basis of her length of service and to pay
calculated amount to the petitioner within a
period of two months from the date of
service of certified copy of this order.

28. The District Basic Eduction
Officer, Varanasi is also directed to pass
reasoned and speaking order regarding
admissibility of interest over the delayed
payment of gratuity to the petitioner within
a period of three months from the date of
service of certified copy of this order.

29. So far as applicability of the
provisions of Payment of Gratuity Act,
1972 in the case of petitioner is concerned,
since this court has held that petitioner is
entitled for payment of gratuity in terms of
existing policy of State Government, the
said issue is left open to be decided at
appropriate point of time.
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(2024) 3 ILRA 680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 18332 of 2023

Dr. Bhaktiputra Rohtam ...Petitioner