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 non-payment 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-in-aid 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 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.

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 grant-in-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.

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 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, WritA 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.

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 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 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.