STATE OF U.P. & ORS. versus SMT. PRIYANKA on 9 February 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature at Allahabad in SpecialAppeal No. 343 of 2021 by which the Division Bench of the High CourtBhas dismissed the said appeal and has confirmed the judgment and orderpassed by the learned Single Judge directing the appellants – State ofU.P. and Ors. to pay the gratuity to the original writ petitioner on thedeath of the deceased employee (her husband), the State of U.P. andOrs. have preferred the present appeal.

C2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the deceased employee Dr. Vinod Kumar, husband ofthe original writ petitioner, was working as Lecturer. He joined serviceon 02.07.2001 and died on 11.08.2009 while in service. The original writpetitioner - wife of the deceased employee applied for payment ofDgratuity due to her husband, but the same was rejected on the groundthat the husband of the petitioner, while in service, had not opted forretirement at the age of 60 years. The original writ petitioner thereforefiled the writ appeal before the High Court being Writ Appeal No. 2211of 2021.

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E2.2 Relying upon and following the earlier decisions of the HighCourt and by observing that if the deceased employee would have beenalive, he would have retired in 2026, if he had opted for retirement at theage of 60 years and before he could opt for retirement at the age of 60years, he died, therefore, the learned Single Judge allowed the writ petitionFand directed the appellants to compute the amount payable to her husbandtowards gratuity quantified in accordance with the relevant Governmentorders with the interest @ 8% p.a. from the date of filing of the applicationfor gratuity till the amount is actually disbursed, ignoring the fact that thehusband of the original writ petitioner had not opted for retirement at theage of 60 years.G

2.3 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, the appellants preferred the writappeal before the Division Bench of the High Court. By the impugnedjudgment and order, the Division Bench of the High Court has dismissedthe said appeal, hence the present appeal.

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3. Shri Sanjay Kumar Tyagi, learned counsel appearing on behalfof the appellants has vehemently submitted that in the facts andcircumstances of the case, the High Court has materially erred in directingthe appellants to pay gratuity to the original writ petitioner on the deathof the deceased employee.

3.1 It is submitted that the High Court has not properly appreciatedthe fact that the deceased employee failed to exercise the option andtherefore the benefit of death-cum-retirement gratuity cannot besanctioned to the respondent being heirs of the deceased employee.

3.2 It is further submitted that as per the prevailing governmentorders, the exercise of option to retire at the age of 58 years (now 60years) for availing the benefit of death-cum-retirement gratuity was amandatory exercise. It is submitted that therefore in the absence of anyoption exercised by the deceased employee, the High Court has materiallyerred in directing the appellants to grant the benefit of death-cum-retirement gratuity to the respondent on the death of the deceasedemployee.

4. While opposing the present appeal, learned counsel appearingon behalf of the respondent – heirs of the deceased employee hasvehemently submitted that in the facts and circumstances of the case,no error has been committed by the High Court in granting the benefit ofdeath-cum-retirement gratuity to the respondent on the death of thedeceased employee.

4.1 It is submitted that the deceased was appointed as a Lectureron 2.7.2001 and died while in service on 11.8.2009. It is submitted thatbefore the deceased could exercise the option, unfortunately he died. Itis submitted that as per the Government Order dated 16.09.2009, thedeceased was entitled to exercise the option to retire at the age of 60years which was available up to 01.07.2010, however, before he couldexercise the option, unfortunately he died. It is submitted that thereforein the peculiar facts and circumstances of the case and taking note ofthe aforesaid facts, no error has been committed by the High Court indirecting the appellants to grant the benefit of death-cum-retirementgratuity to the heirs of the deceased – respondent herein. It is submittedthat in the peculiar facts and circumstances of the case, the grant ofbenevolent scheme of gratuity by the learned Single Judge of the HighCourt, confirmed by the Division Bench, may not be interfered with.

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A5. We have heard learned counsel for the respective parties atlength.

At the outset, it is required to be noted that the date of birth of thedeceased was 1.7.1951. He was appointed as a Lecturer on 2.7.2001.He would have completed 60 years of his age on 30.06.2011. As perBGovernment Order dated 16.09.2009, he would have exercised his optionto retire at the age of 60 years on or before 1.7.2010, However, beforehe could exercise the option, unfortunately he died. In fact, he had diedeven prior to the Government order. He had died on 11.08.2009 whereasthe Government order is dated 16.9.2009. Therefore, there was no chancefor him to exercise any option at all. There is hence no merit in thisCappeal.

The High Court has rightly observed that the respondent wouldbe entitled to the benefit of the Government Order dated 16.9.2009 andwould be entitled to the benefit of death-cum-retirement gratuity beingthe heirs of the deceased employee.D

At this stage, it is required to be noted that it is not the case onbehalf of the appellants that if the deceased employee would haveexercised the option, even then he would not have been entitled to thebenefit of death-cum-retirement gratuity under the scheme. The death-cum-retirement gratuity is the benevolent scheme and the same isEextended to the respondent being heirs/dependent of the deceasedemployee by the learned Single Judge, confirmed by the Division Bench.In the facts and circumstances of the case, no interference of this Courtis called for.

6. In view of the above and for the reasons stated above, theFpresent appeal fails and deserves to be dismissed and is accordinglydismissed.

We deprecate the practice of a State filing such cases before theApex Court. Hence the appeal is dismissed with cost of Rs. 50,000/-payable by the appellant to the respondent within a period of four weeksGfrom today.

Bibhuti Bhushan Bose(Assisted by : Abhishek Partap Singh, LCRA)

Appeals dismissed.

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