Point of Law: Service matter - Payment of a gratuity - Rule 5 of these Rules provided that a gratuity equal to six times pay last drawn by a teacher at time of his death would be payable provided he had put in not less than three years of continuous service prior to his demise - It would be wholly erroneous and irrational to hold that a teacher was liable to submit an option prior to his demised.

JUDGMENT :

YASHWANT VARMA, J.

1. Heard Sri. Kamal Kumar Kesherwani, Sri. Akhilesh Kumar, Sri. Awadh Narain Rai, learned counsels for the petitioners, Sri. J.N. Maurya, learned Chief Standing Counsel assisted by Sri. Chandan Kumar, learned Standing Counsel, Mrigraj Singh, Sanjay Kumar Singh and Sri. Awadhesh Kumar, learned counsel for the respondents.

2. These three writ petitions were with consent heard together and are being disposed of by this common judgment.

3. The three petitioners here are the heirs of teachers who were working in educational institutions administered by the Board of Basic Education [Board]. Those teachers died while in service and prior to reaching the age of retirement. The age of retirement of teachers as prescribed in Rule 29 of the U.P. Basic Education [Teachers] Service Rules, 1981 [Teachers Rules] was initially fixed at 58 years. It was thereafter increased to 60 years. In terms of the Twelfth Amendment to those Rules introduced on 9 November 2011, the age of retirement was ultimately increased to 62 years. The teachers in respect of whom the petitioners assert a right to receive gratuity admittedly died before attaining the age of superannuation. Since the respondents had refused to accede or attend to that claim, they approached this Court and preferred the instant writ petitions. The respondents on instructions apprised the Court that they would not be entitled to receive gratuity since those teachers had not exercised an option to receive the same prior to their death.

4. The petitioners have placed reliance upon the decision rendered by a learned Judge in Usha Rani vs. State of U.P. and Others, Writ Appeal No. 17399 of 2019 decided on 12.12.2019, to contend that the question of whether gratuity would be payable irrespective of whether an option had been exercised by an employee prior to attaining the age of superannuation and untimely death stood settled in their favour. Usha Rani was dealing with a case where the employee had died prior to attaining the age of retirement which at the relevant time was fixed at 60 years. The learned Judge taking note of the previous decisions rendered by the Court in the matter of Noor Jahan vs. State of U.P. Writ Appeal No. 40568 of 2016 decided on 04 January 2018 and Smt. Omwati vs. State of U.P. Writ Appeal No. 8679 of 2018 decided on 09 March 2018, held that the benefit of gratuity could not be denied to an employee solely on account of an alleged failure on his part to exercise the requisite option prior to his untimely demise and before he had reached the age of superannuation. The learned Judge dealing with the aforesaid question held thus:-

“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 comple