STATE OF U.P. & ORS.versusSMT. PRIYANKA

                         [2023] 1 S.C.R. 385                           385


                     STATE OF U.P. & ORS.                              A
                                 V.
                        SMT. PRIYANKA
                  (Civil Appeal No. 3639 of 2022)
                       FEBRUARY 09, 2023                               B
        [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Service Law: Death-cum-Retirement gratuity – Payment of –
To heirs/dependent of deceased employee, when employee died
before he could exercise the option of retirement – Respondent-
                                                                       C
wife of deceased employee applied for payment of gratuity due to
her husband, but the same was rejected on ground that he had not
opted for retirement at the age of 60 years – Writ proceedings –
High Court held that respondent would be entitled to the benefit of
Government Order dated 16.9.2009 and to the benefit of death-
cum-retirement gratuity being heir of the deceased employee –          D
Justification of – Held: Justified – Respondent’s husband would
have completed 60 years of his age on 30.06.2011 – As per
Government Order dated 16.09.2009, he would have exercised his
option to retire at the age of 60 years on or before 1.7.2010 –
However, before he could exercise the option, he died – In fact, he
                                                                       E
had died even prior to the Government order – He had died on
11.08.2009 whereas the Government order is dated 16.9.2009 –
Therefore, there was no chance for him to exercise any option at all
– Death-cum-retirement gratuity is a benevolent scheme and the
same was extended by the High Court to the respondent she being
heir/ dependent of the deceased employee – No interference called      F
for.
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.3639
Of 2022.
      From the Judgment and Order dated 30.11.2021 of the High Court
of Judicature at Allahabad in SPLA No.343 of 2021.                     G

    Sanjay Kumar Tyagi, Gaurav Dhama, Prabhat Kumar Rai, Ajay
Kumar Pandey, Advs. for the Appellants.
      Dr. Ritu Bhardwaj, Sachin Mittal, Advs. for the Respondent.
                                                                       H
                                385
386             SUPREME COURT REPORTS                             [2023] 1 S.C.R.


A            The Judgment of the Court was delivered by
             M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court of Judicature at Allahabad in Special
      Appeal No. 343 of 2021 by which the Division Bench of the High Court
B     has dismissed the said appeal and has confirmed the judgment and order
      passed by the learned Single Judge directing the appellants – State of
      U.P. and Ors. to pay the gratuity to the original writ petitioner on the
      death of the deceased employee (her husband), the State of U.P. and
      Ors. have preferred the present appeal.
C            2. The facts leading to the present appeal in nutshell are as under:-
             2.1 That the deceased employee Dr. Vinod Kumar, husband of
      the original writ petitioner, was working as Lecturer. He joined service
      on 02.07.2001 and died on 11.08.2009 while in service. The original writ
      petitioner - wife of the deceased employee applied for payment of
D     gratuity due to her husband, but the same was rejected on the ground
      that the husband of the petitioner, while in service, had not opted for
      retirement at the age of 60 years. The original writ petitioner therefore
      filed the writ appeal before the High Court being Writ Appeal No. 2211
      of 2021.
E            2.2 Relying upon and following the earlier decisions of the High
      Court and by observing that if the deceased employee would have been
      alive, he would have retired in 2026, if he had opted for retirement at the
      age of 60 years and before he could opt for retirement at the age of 60
      years, he died, therefore, the learned Single Judge allowed the writ petition
F     and directed the appellants to compute the amount payable to her husband
      towards gratuity quantified in accordance with the relevant Government
      orders with the interest @ 8% p.a. from the date of filing of the application
      for gratuity till the amount is actually disbursed, ignoring the fact that the
      husband of the original writ petitioner had not opted for retirement at the
      age of 60 years.
G
             2.3 Feeling aggrieved and dissatisfied with the judgment and order
      passed by the learned Single Judge, the appellants preferred the writ
      appeal before the Division Bench of the High Court. By the impugned
      judgment and order, the Division Bench of the High Court has dismissed
      the said appeal, hence the present appeal.
H
          STATE OF U.P. AND ORS. v. SMT. PRIYANKA                             387
                       [M. R. SHAH, J.]

       3. Shri Sanjay Kumar Tyagi, learned counsel appearing on behalf        A
of the appellants has vehemently submitted that in the facts and
circumstances of the case, the High Court has materially erred in directing
the appellants to pay gratuity to the original writ petitioner on the death
of the deceased employee.
       3.1 It is submitted that the High Court has not properly appreciated   B
the fact that the deceased employee failed to exercise the option and
therefore the benefit of death-cum-retirement gratuity cannot be
sanctioned to the respondent being heirs of the deceased employee.
      3.2 It is further submitted that as per the prevailing government
orders, the exercise of option to retire at the age of 58 years (now 60       C
years) for availing the benefit of death-cum-retirement gratuity was a
mandatory exercise. It is submitted that therefore in the absence of any
option exercised by the deceased employee, the High Court has materially
erred in directing the appellants to grant the benefit of death-cum-
retirement gratuity to the respondent on the death of the deceased
employee.                                                                     D

       4. While opposing the present appeal, learned counsel appearing
on behalf of the respondent – heirs of the deceased employee has
vehemently submitted that in the facts and circumstances of the case,
no error has been committed by the High Court in granting the benefit of
death-cum-retirement gratuity to the respondent on the death of the           E
deceased employee.
       4.1 It is submitted that the deceased was appointed as a Lecturer
on 2.7.2001 and died while in service on 11.8.2009. It is submitted that
before the deceased could exercise the option, unfortunately he died. It
is submitted that as per the Government Order dated 16.09.2009, the           F
deceased was entitled to exercise the option to retire at the age of 60
years which was available up to 01.07.2010, however, before he could
exercise the option, unfortunately he died. It is submitted that therefore
in the peculiar facts and circumstances of the case and taking note of
the aforesaid facts, no error has been committed by the High Court in         G
directing the appellants to grant the benefit of death-cum-retirement
gratuity to the heirs of the deceased – respondent herein. It is submitted
that in the peculiar facts and circumstances of the case, the grant of
benevolent scheme of gratuity by the learned Single Judge of the High
Court, confirmed by the Division Bench, may not be interfered with.
                                                                              H
388              SUPREME COURT REPORTS                            [2023] 1 S.C.R.


A            5. We have heard learned counsel for the respective parties at
      length.
              At the outset, it is required to be noted that the date of birth of the
      deceased 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 per
B     Government Order dated 16.09.2009, he would have exercised his option
      to retire at the age of 60 years on or before 1.7.2010, However, before
      he could exercise the option, unfortunately he died. In fact, he had died
      even prior to the Government order. He had died on 11.08.2009 whereas
      the Government order is dated 16.9.2009. Therefore, there was no chance
      for him to exercise any option at all. There is hence no merit in this
C     appeal.
             The High Court has rightly observed that the respondent would
      be entitled to the benefit of the Government Order dated 16.9.2009 and
      would be entitled to the benefit of death-cum-retirement gratuity being
      the heirs of the deceased employee.
D
             At this stage, it is required to be noted that it is not the case on
      behalf of the appellants that if the deceased employee would have
      exercised the option, even then he would not have been entitled to the
      benefit of death-cum-retirement gratuity under the scheme. The death-
      cum-retirement gratuity is the benevolent scheme and the same is
E     extended to the respondent being heirs/dependent of the deceased
      employee by the learned Single Judge, confirmed by the Division Bench.
      In the facts and circumstances of the case, no interference of this Court
      is called for.
            6. In view of the above and for the reasons stated above, the
F     present appeal fails and deserves to be dismissed and is accordingly
      dismissed.
            We deprecate the practice of a State filing such cases before the
      Apex Court. Hence the appeal is dismissed with cost of Rs. 50,000/-
      payable by the appellant to the respondent within a period of four weeks
G     from today.
      Bibhuti Bhushan Bose                                          Appeals dismissed.
      (Assisted by : Abhishek Partap Singh, LCRA)




H