# Smt. Usha Verma & Anr v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** Writ A No. 18971 of 2022
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-usha-verma-anr-v-state-of-u-p-ors-51740
- **Pages:** 8

## Headnote

Service Law - Payment of Gratuity -
Applicability of Payment of Gratuity Act,
1972 - Petitioners, retired or dependents of
deceased employees of the Basic Education
Department, sought gratuity under the Payment
of Gratuity Act, 1972, claiming teachers are
covered as employees under Section 2(e) -
Held, the Act, 1972, is not directly applicable to
teachers in Basic Schools, as their gratuity is
governed by specific Government Orders (dated
23.11.1994,
10.06.2002,
and
04.02.2004),
which provide gratuity subject to conditions,
such as opting to retire at age 60 - The
exception in Section 2(e) allows the St. to frame
separate rules for gratuity, and petitioners failed
to plead or challenge these Government Orders,
rendering
their
claim
under
the
Act
unsustainable. (Paras 3, 10, 12, 13, 17)

Service Law - Deficiency in Pleadings and
Clean Hands Doctrine - Petitioners' writ
petitions lacked specific pleadings regarding
applicable Government Orders and failed to
disclose material facts, such as the conditions
for gratuity eligibility - Held, the petitioners did
not approach the Court with clean hands by
suppressing relevant Government Orders and
delaying their claims (ranging from 2002 to
2023) - The absence of a challenge to the
Government
Orders
and
vague
pleadings
preclude relief, as per the principle that a
litigant must fully disclose material facts, as held
in Anil Kumar Yadav and Shri K. Jayaram Vs
Bangalore Development Authority. (Paras 1, 7,
16, 17)

Service Law - Conditions for Gratuity
under
Government
Orders
-
The
Government Orders stipulate that teachers who
work until age 62 or fail to submit an option to
retire at age 60 are not entitled to gratuity -
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, as per Smt. Shiv Pyari Srivastav and
Shivkali, teachers retiring at 62 or not opting for
retirement at 60 forfeit gratuity, and petitioners,
most of whom retired at 62 or did not plead
compliance with these conditions, are not
entitled to relief - However, liberty was granted
to pursue claims under the Government Orders
if applicable, with reference to Shivkali and Usha
Rani. (Paras 5, 8, 14, 15, 17)

Writ Petitions Disposed Of .

Liberty Granted to Pursue Claims
Under
Government Orders.

List of Cases Cited:

## Text

3 All. Smt. Usha Verma & Anr. Vs. State of U.P. & Ors.
697
Evaluation Committee to look into and
screen out documents of self appraisal etc.
submitted by the petitioner on 04.11.2021
received in CAS promotion cell on
05.01.2022 and take a decision whether
petitioner was eligible on merits on the
basis of documents produced by him to be
promoted as professor under CAS and if it
finds favour with the claim of the
petitioner,
it
shall
accord
notional
promotion
to
the
petitioner
with
consequential benefits of pay in question as
admissible to such promotional post of
Professor for revision of pension and other
retirement dues only w.e.f. the date
petitioner
attained
his
age
of
superannuation and, accordingly, arrears of
difference of pension and other retirement
dues shall be paid. Appropriate decision
shall be taken within a maximum period of
three months from the date of production of
certified copy of this order.

(ii) The respondent- University is
directed
to
give
re-employment
to
petitioner as teacher in the department of
Dharmagam, Faculty of Sanskrit Vidya
Dharm Vigyan, Banaras Hindu University,
Varanasi if vacancy exists and appropriate
order shall be passed in the above regard
within three weeks of production of
certified copy of this order.

47. Cost made easy.
----------
(2024) 3 ILRA 697
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2024
BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 18971 of 2022
with other cases

Smt. Usha Verma & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shoar Mohammad Khan, Sri Quazi
Mohammad Akaram

Counsel for the Respondents:
C.S.C., Sri Vijai Kumar Srivastava

Service Law - Payment of Gratuity -
Applicability of Payment of Gratuity Act,
1972 - Petitioners, retired or dependents of
deceased employees of the Basic Education
Department, sought gratuity under the Payment
of Gratuity Act, 1972, claiming teachers are
covered as employees under Section 2(e) -
Held, the Act, 1972, is not directly applicable to
teachers in Basic Schools, as their gratuity is
governed by specific Government Orders (dated
23.11.1994,
10.06.2002,
and
04.02.2004),
which provide gratuity subject to conditions,
such as opting to retire at age 60 - The
exception in Section 2(e) allows the St. to frame
separate rules for gratuity, and petitioners failed
to plead or challenge these Government Orders,
rendering
their
claim
under
the
Act
unsustainable. (Paras 3, 10, 12, 13, 17)

Service Law - Deficiency in Pleadings and
Clean Hands Doctrine - Petitioners' writ
petitions lacked specific pleadings regarding
applicable Government Orders and failed to
disclose material facts, such as the conditions
for gratuity eligibility - Held, the petitioners did
not approach the Court with clean hands by
suppressing relevant Government Orders and
delaying their claims (ranging from 2002 to
2023) - The absence of a challenge to the
Government
Orders
and
vague
pleadings
preclude relief, as per the principle that a
litigant must fully disclose material facts, as held
in Anil Kumar Yadav and Shri K. Jayaram Vs
Bangalore Development Authority. (Paras 1, 7,
16, 17)

Service Law - Conditions for Gratuity
under
Government
Orders
-
The
Government Orders stipulate that teachers who
work until age 62 or fail to submit an option to
retire at age 60 are not entitled to gratuity -
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, as per Smt. Shiv Pyari Srivastav and
Shivkali, teachers retiring at 62 or not opting for
retirement at 60 forfeit gratuity, and petitioners,
most of whom retired at 62 or did not plead
compliance with these conditions, are not
entitled to relief - However, liberty was granted
to pursue claims under the Government Orders
if applicable, with reference to Shivkali and Usha
Rani. (Paras 5, 8, 14, 15, 17)

Writ Petitions Disposed Of .

Liberty Granted to Pursue Claims
Under
Government Orders.

List of Cases Cited:

1. Birla Institute of Technology Vs The St. of
Jharkhand & ors., (2019) 15 SCC 586

2. Nagar Ayukt Nagar Nigam, Kanpur Vs Sri
Mujib Ullah Khan & anr., Civil Appeal No. 2628
of 2017, decided on 02.04.2019

3. U.P. St. Sugar Corporation Vs Smt. Sharada
Devi & ors., 2015 (4) ADJ 559

4. Biharilal Dobray Vs Roshan Lal Dobray,
(1984) 1 SCC 551

5. District Basic Education Officer & anr.Vs
Shivkali & ors., Special Appeal Defective No. 651
of 2021, decided on 06.10.2021

6. Smt. Shiv Pyari Srivastav & ors. Vs St. of U.P.
& ors., Writ-A No. 37216 of 2014, decided on
18.01.2024

7. Maniben Maganbhai Bhariya Vs District
Development Officer Dahod & ors., 2022 SCC
OnLine SC 507

8. Dhanraj Vs Vikram Singh & ors., Civil Appeal
No. 3117 of 2009, decided on 10.05.2023

9. Anil Kumar Yadav Vs St. of U.P. & ors.,
Neutral Citation No. 2023:AHC:193413

10. Shri K. Jayaram & ors. Vs Bangalore
Development Authority & ors., (2022) 12 SCC
815

11. Usha Rani Vs St. of U.P. & ors., Neutral
Citation No. 2019:AHC:180910

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. In order to make out a case to grant
the relief sought, a writ petition has to be
drafted very carefully. Pleadings are
essential part of any litigation. The relief
sought should be supported by pleadings.
The present bunch of writ petitions are
example of it where the prayers sought are
not only vague but not supported by
material
pleadings
also.
Even
the
petitioners have approached this Court by
not disclosing entire relevant facts which
goes adverse to their case, i.e., petitioners
have not approached this court with clean
hands.

2. Petitioners (retired employees or
husband, father or mother of deceased
employees), as the case may be, while
working in Basic Education Department,
have retired or died (before or after
retirement) and period goes as old as 2002
to as recent as 2023. They have not raised
any demand of gratuity for many years and
only in 2022 and 2023, these writ petitions
are filed seeking relief that concerned
District Basic Education Officers be
directed to release and pay the petitioners
their
respective
amount
of
gratuity
alongwith interest. Details of petitioners
and relation with deceased employee, date
of retirement/ date of death, age as on
retirement/death, etc. are given hereinafter
in the form of following chart:

Sl. No. W.P. No.
Name
of
Petitioner
Year
of
retireme
nt/ death
Age as
on
retirem
ent/
death
1.
18971/2022 Smt. Usha
Verma and
Km.
2014 and
2016
62
3 All. Smt. Usha Verma & Anr. Vs. State of U.P. & Ors.
699
Kishwar
Ara
2
6271/2023
Paras Nath
Tiwari
2015
62
3.
10540/2023
Dan
Bahadur
2010
60
4.
10928/2023
Prabhu
Nath
2007
62
5.
10932/2023
2009
2009
62
6.
10939/2023
Chaitu
Ram
2011
62
7.
11086/2023
Shakeela
Begum
(wife
of
employee)
2012
62 Y 6
M
8.
11629/2023
Lal
Bahadur
Patel
2023
62
9.
11702/2023
Ram
Jiyawan
2022
62
10.
12051/2023
Daya
Shankar
2006
62
11.
12065/2023
Grihraj
2008
62
12.
13800/2023
Ramakaran 2002
60
13.
14043/2023
Vimla
Devi
2020
62
14.
14359/2023
Ravinder
Bansal
(son
of
employee)
2009
51
15.
15528/2023
Devamatiy
a (wife of
employee)
2014
61
16.
15781/2023
Asha
Srivastava
(wife
of
employee)
2018
61
17.
16328/2023

Manorama
Singh
(daughter
of
employee)
2007
61
18.
17864/2023

Smt.
Shanti
Devi (wife
of
employee)
2006
62
19.
20563/2023

Smt.
Kusma
Devi (wife
of
2022
62
employee)
20.
5588/2023
Bindra
Prasad
Patel
2017
64
21.
7771/2023
Awadh
Narayan
Patel
2018
62
22.
7780/2023
Mohan Lal 2014
62
23.
7783/2023
Ram Nidhi 2011
62
24.
9695/2023
Bhagwati
Prasad
Kushwaha
2011
62
25.
21010/2022
Aslam
Jainavi
(Voluntar
y
Retiremen
t)
2021
60

3. Petitioners have claimed aforesaid
relief primarily on ground that Payment of
Gratuity Act, 1972 (hereinafter referred to
as "Act, 1972") will be applicable to
Teachers of Basic Schools. However, they
have not disclosed that payment of gratuity
for Teachers working in these Schools are
presently
governed
by
different
Government
Orders.
Neither
relevant
Government Orders dated 23.11.1994,
10.06.2002 and 04.02.2004, were placed on
record nor there was any averment in
regard to their existence in writ petitions.
The writ petitions are also silent about huge
delay in claiming relief.

4.

Despite
aforesaid
material
shortcomings in pleadings, Sri Shoar
Mohammad Khan, Sri Quazi Mohammad
Akram and Sri Tawvab Ahmed Khan,
Advocates for petitioners, proceeded to
argue the case on merits that petitioners are
employees
under
the
definition
of
'employee' as mentioned in Section 2(e) of
Act, 1972. Learned counsel also referred
Section 14 of Act, 1972 that it will override
on all other enactments. It was also argued
700 INDIAN LAW REPORTS ALLAHABAD SERIES
that there was no need to mention
Government orders or to challenge it.
Argument was also raised on 'repugnancy',
so much as age of superannuation was
increased upto 62 years without any
conditions so condition of submitting any
option was illegal. They also placed
reliance on a judgment passed by Supreme
Court in Birla Institute of Technology vs.
The State of Jharkhand and others,
(2019) 15 SCC 586 that since Teachers of
said Institute were considered to be
employees, therefore, petitioners would
also fall under the definition of 'employee'.
Reliance was also placed on another
judgment passed by Supreme Court in
Nagar Ayukt Nagar Nigam, Kanpur vs.
Sri Mujib Ullah Khan and another,
(Civil Appeal No. 2628 of 2017), decided
on 02.04.2019 and this Court's judgment in
U.P. State Sugar Corporation vs. Smt.
Sharada Devi and others, 2015(4) ADJ
559.

5. Per contra, Sri K. Shahi, Sri
Shivendra Singh Bhadauriya, Sri Bipin
Bihari Pandey, Sri Sanjay Kumar Singh, Sri
Bhanu Pratap Singh Kachhawah, Sri C.S.
Singh and Sri Akhilesh Kumar Sharma,
Advocates
for
Respondents-Basic
Education Officers; Sri Ashish Kumar
Nagvanshi and Sri Shashi Prakash Singh,
Additional Chief Standing Counsel; Sri
Ravi Prakash Srivastava, Standing Counsel
and Mrs. Shruti Malviya, Brief Holder for
State-Respondents, submitted that not only
there is huge delay in approaching this
Court but there is no challenge to
Government orders whereby provision of
gratuity is provided to Teachers subject to
certain conditions. They further submitted
that according to referred Government
Orders since petitioners have worked till 62
years or not submitted option, they are not
entitled for payment of gratuity. Reliance is
placed on Supreme Court's decision in
Biharilal Dobray vs. Roshan Lal Dobray,
(1984)1 SCC 551 and this Court's decision
in District Basic Education Officer and
another vs. Shivkali and others (Special
Appeal Defective No. 651 of 2021),
decided on 06.10.2021. Reliance is also
placed on a recent judgment of this Court
in Smt. Shiv Pyari Srivastav and others
vs. State of U.P. and others (Writ-A No.
37216 of 2014), decided on 18.01.2024
that since petitioners have worked till 62
years, they were not entitled for payment of
gratuity.

6. Heard learned counsel for parties
and perused the material available on
record.

7. In above legal and factual
background, substantial arguments raised
before this Court by petitioners are not
substantially supported by pleadings of writ
petitions. It is difficult to believe that
petitioners have no knowledge about
relevant
Government
Orders
whereby
gratuity is payable to Teachers in certain
conditions, despite they have worked for
many years in Primary Schools/ Junior
High Schools. Not disclosing the said
Government Orders is nothing but an
attempt to mislead the Court.

8. As referred in Smt. Shiv Pyari
Srivastav
(supra),
according
to
Government orders, if Teachers have
worked upto the age of 62 years, they are
not entitled for gratuity. Relevant part
thereof is mentioned hereinafter:

"10. In the above factual and
legal background, this Court has to
consider interpretation of above referred
G.Os. dated 04 February, 2004 and 23
November, 1994. According to G.O. of 23
3 All. Smt. Usha Verma & Anr. Vs. State of U.P. & Ors.
701
November, 1994, in a case where an
employee opt to work till the maximum age
of retirement i.e. up to 62 years, he has to
forego his right of gratuity and will be
entitled for pension only.

11. I have also carefully perused
the G.O. dated 04 February, 2004 and I
have found merit in the argument of
learned counsel for respondent that the
said G.O. is in regard to extension of age of
retirement only and it does not co-relate or
extend any right to petitioners for gratuity
even working till age of 62 years i.e
extended date of retirement.

12. I have also carefully perused
the impugned order as reproduced in
previous paragraphs wherein concerned
respondent
has
taken
the
same
interpretation as discussed above. So far
as, another G.O. is concerned, I do not find
that petitioners will have any case on basis
of said G.O., which was related only to an
effect that petitioners were absorbed in the
present service though they were earlier
working in other service.

13. Therefore, petitioners are
failed to point out any irregularity or
illegality in the impugned order which is
based
on
correct
interpretation
of
concerned
Government
Orders,
accordingly, I do not find any case for
interference in impugned order, therefore,
these
writ
petitions
are
accordingly,
dismissed."

9. So far as payment of gratuity is
concerned, Section 1(3) of Act, 1972
provides applicability of Act and being
relevant, is reproduced hereinafter:

(3) It shall apply to -

(a) every factory, mine, oilfield,
plantation, port and railway company;

(b) every shop or establishment
within the meaning of any law for the time
being in force in relation to shops and
establishments in a State, in which ten or
more persons are employed, or were
employed, on any day of the preceding
twelve months;

(c) such other establishments or
class of establishments, in which ten or
more employees are employed, or were
employed, or, any day of the preceding
twelve months, as the Central Government
may, by notification, specify in this behalf."

10. It is also relevant to mention
definition of 'employee' as mentioned in
Section 2(e) of Act, 1972, which is
reproduced hereinafter:

"(e)
"employee"
means
any
person (other than an apprentice) who is
employed for wages, whether the terms of
such employment are express or implied, in
any kind of work, manual or otherwise, in
or in connection with the work of a factory,
mine, oilfield, plantation, port, railway
company, shop or other establishment to
which this Act applies, but does not include
any such person who holds a post under the
Central Government or a State Government
and is governed by any other Act or by any
rules providing for payment of gratuity."

11. Supreme Court in recent
judgments
has
extended
scope
of
"Establishment" and amended definition of
"employee"
and
included
"teachers
working
at
private
institutions"
and
"Angawadi workers / helpers" working
under a scheme in Birla Institute of
Technology
(supra)
and
Maniben
Maganbhai
Bhariya
v.
District
Development Officer Dahod and others,
2022 SCC OnLine SC 507 respectively
and held that they are entitled for gratuity.

12. In all above cases, there was no
separate Act or Rules were enacted for
702 INDIAN LAW REPORTS ALLAHABAD SERIES
payment of gratuity. Central Government/
State Governments have framed separate
Act/ Rules for payment of gratuity for
Teachers working under State/ Central
Institutions, as the case may be. Later on
payment of gratuity was made applicable to
Teachers working in schools run by Basic
Education Board by way of issuing
Government Orders (referred above). The
later part of definition of 'employee' has
carved out an exception to do so, i.e., to
frame Act/ Rules for this purpose. It is upto
the State to carry on present procedure or to
frame specific Act/ Rules for payment of
gratuity for Teachers in Basic Schools.

13. In aforesaid circumstances,
presently gratuity is paid to Teachers in
terms of referred Government Orders in
certain circumstances. The details of
Government Orders are not part of writ
petitions. Petitioners have not pleaded
about its applicability. Government Orders
are also not under challenge, except oral
argument on 'repugnancy'.

14. The argument on 'repugnancy' is
also liable to be rejected since there is no
challenge to Government Orders and for
this purpose reference to a judgment of
Supreme Court in Dhanraj vs. Vikram
Singh and others (Civil Appeal No. 3117
of 2009), decided on 10.05.2023, would be
relevant, wherein it has been observed that,
"We are of the view that in absence of any
specific challenge to the validity of the
statutory provisions, the High Court ought
not to have undertaken the exercise of
going into the question of repugnancy."

15. The Division Bench of this Court
in Shivkali (supra) has considered the
issue of payment of gratuity to Teachers
working at Junior High Schools and not
only
upheld
Government
Orders
on
payment
of
gratuity
but
interpreted
conditions in benefit of Teachers also.
Relevant paragraphs 13 and 14 thereof are
mentioned hereinafter:

"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
3 All. Smt. Usha Verma & Anr. Vs. State of U.P. & Ors.
703
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 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."

16. With regard to deficiency of
pleadings and that a litigant has to approach
this Court with clean hands, few paragraphs
of a judgment passed by this Court in Anil
Kumar Yadav vs. State of U.P. and
others,
Neutral
Citation
No.
2023:AHC:193413
are
referred
hereinafter:

"(ख). इस थतर पर उच्चतम धय य लय द्व र प ररत
दकये गये दनणाय श्री के जयराम व अन्य प्रनर् बैंगलोर डेवलपमेंट
अर्ॉररटी व अन्य : (२०२२) १२ एस सी सी ८१५ से दनम्न
अांश क उल्लेख करन महत्वपूणा होग ः-

" ३८-....थथ दपत दवदध के अनुस र,िो पक्ष
सांदवध न के अनुच्छेि ३२ के अांतगात इस धय य लय य अनुच्छेि
२२६ के अांतगात उच्च धय य लय के अस ध रण क्षेत्र दधक र को
आह त करत है, तो यह म न ि त है दक वो सत्यव िी, थपष्टव िी
और दववता होग । उसे दबन दकसी दनग्रह से सभी वथतुगत तथ्यों को
उद्घ दटत करन च दहए, भले ही वे उसके दवरुद्ध हों । उसको तथ्यों
की 'छुप -छुपी' (ह ईड एांड सीक) खेलने य उनक 'चयन और
चुनने' (दपक एांड चूज़) करने की अनुमदत नहीं िी ि सकती, दिधहें
वह प्रकट और छुप न (पि ा ड लन ) य वो अधय तथ्य दिनको
उद्घ दटत नहीं करन (दछप न ) पसांि करत है। आज्ञ पत्र क्षेत्र दधक र
क मूल आध र, सत्य व पूणा (सही) तथ्यों के प्रकटन पर आध ररत
है।अगर वथतुगत तथ्य छुप ये य दवकृत दकये ि ते है तो आज्ञ पत्र
धय य लय की क याव ही ही और उपयोग असांभव हो ि येग ।
य दचक कत ा को दबन दकसी दनग्रह के व ांदछत अनुतोष पर प्रभ व
क ररत करने व ले सभी तथ्यों को अवश्य ही उद्घ दटत करन है।ऐस
इसदलए क्योंदक "धय य लय दवदध को तो ि नत है लेदकन तथ्यों को
नहीं।"

(िेखे : श्री के जयराम व अन्य प्रनर् बैंगलोर
डेवलपमेंट अर्ॉररटी व अन्य : (२०२२) १२ एस सी सी ८१५
) का प्रस्र्र संख्या ३८)

(दहधिी में अनुव ि धय य लय द्व र दकय गय है।)

( रेख ांदकत कर प्रमुखत धय य लय द्व र प्रि न की
गयी है।)"

17. In aforesaid circumstances,
though the relief sought in writ petitions,
was not supported by pleadings, still on
basis above discussion, I do not find that
petitioners are entitled for gratuity only on
basis of Payment of Gratuity Act as
presently it is governed by referred
Government Orders permitted by legal
provisions also. The petitioners have not
pleaded to take benefit of relevant
Government
Orders
for
payment
of
gratuity, therefore, this Court cannot enter
into said arena. However, if petitioners'
case still falls under referred Government
Orders, they have liberty to take available
legal recourse to avail it's benefit for
payment of gratuity and for that reference
of Shivkali (supra) and Usha Rani vs.
State of U.P. and others, Neutral Citation
No. - 2019:AHC:180910 be taken note of.

18. The writ petitions are accordingly
disposed off.
704 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 704
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 19344 of 2023

Arpit Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Kesherwani

Counsel for the Respondents:
C.S.C., Sri Aditya Kumar Singh, Sri Manu
Saxena

Service Law - Compassionate Appointment -
Uttar Pradesh Recruitment of Dependants of
Government Servants Dying in Harness Rules,
1974
-
Petitioner
sought
compassionate
appointment on a Class-III post following the
death of his father, a Class-IV employee, on
31.07.2022 - Held, the rejection of the
petitioner's application by the Chairman, Nagar
Palika Parishad, Faridpur, Bareilly, vide letter
dated 26.09.2023, was valid, as Rule 5 of the
Rules, 1974, and Government Order dated
17.06.2014, do not entitle the dependent to a
post higher than that held by the deceased
employee - The petitioner's higher qualification
does not override the requirement that "suitable
employment"
be
commensurate
with
the
deceased's post, as clarified by the Supreme
Court. (Paras 3, 5, 8, 15, 16, 17, 18)

Service Law - Interpretation of "Suitable
Employment" under Rule 5 - The petitioner
relied on Smt. Premlata to argue that "suitable
employment" under Rule 5 should be based on
the dependent's qualifications - Held, the
Supreme Court in St. of U.P. Vs Premlata
(reversing the Division Bench) and Suneel
Kumar Vs St. of U.P. clarified that "suitable
employment" under Rule 5 must be interpreted
with reference to the post held by the deceased
employee, not the dependent's qualifications -
Appointment on a higher post (e.g., Class-III) is
not permissible when the deceased held a ClassIV post. (Paras 9, 12, 15, 16, 17, 18)

Service Law - Absence of Vacancy and
Supernumerary Post - The petitioner argued for
the creation of a supernumerary Class-III post,
citing Sushma Gosain - Held, the Supreme
Court in Suneel Kumar held that a
supernumerary post cannot expand the scope of
"suitable employment" beyond the deceased's
post - The respondents confirmed no Class-III
vacancy existed, and the petitioner's refusal of a
Class-IV post offer further justified the rejection
- The petitioner was granted liberty to apply for
a Class-IV post, to be considered per the Rules,
1974. (Paras 5, 6, 11, 16, 18, 20)

Writ Petition Dismissed.

Liberty Granted to Apply for Class-IV Post.

List of Cases Cited:

1. Sushma Gosain Vs U.O.I., (1989) 4 SCC 468

2. Smt. Premlata Vs St. of U.P. & ors., Special
Appeal Defective No. 620 of 2018

3. St. of U.P. Vs Premlata, (Supreme Court,
reversing Special Appeal Defective No. 620 of
2018)

4. Suneel Kumar Vs St. of U.P. & ors., AIR 2022
SC 5416

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioner, learned standing counsel for the
State-respondents and Sri Manu Saxena,
learned counsel for the respondent nos. 4 &
5.

2. Present petition has been filed with
the following prayers:-

"(a) Issue, a writ or direction in
the nature of certiorari to quash the
impugned
communication
letter dated