The Allahabad High Court while allowing the petition observed that retirement at 60 years is not an entitling fact, which leads the employee to acquire a right to receive gratuity. An employee gets his right to gratuity according to the number of the years that he serves.
A Single Bench of Justice J.J Munir passed this order while hearing a petition filed by Sehrun Nisha.
The petition is directed against the order dated 02.12.2023 passed by the District Minority Welfare Officer, Prayagraj, rejecting the petitioner’s claim to gratuity on the ground that the petitioner has sought voluntary retirement at the age of fifty-seven years, whereas gratuity is payable only to those who opt to retire at the age of sixty years (as distinguished from those who opt to retire at the age of sixty-two years) and also in cases of teachers, who die before attaining the age of sixty years.
The Court noted that,
It is submitted that according to the Government Order dated 14.12.2011, it is provided that like civil service, governed by Article 474 of the Civil Service Regulations, those who do not complete ten years of qualifying service, are not entitled to pension but if they opt to retire at the age of sixty years, they are entitled to gratuity under the rules framed for the teachers serving in the aided Intermediate Colleges.
An opportunity was provided to the District Minority Welfare Officer, Prayagraj to re-consider the matter. The District Minority Welfare Officer, Prayagraj has skirted the opportunity granted to him by the Court. He has issued a memo dated 03.05.2024, where the stand taken is that gratuity is payable only to such teachers of the aided Intermediate Institutions, who opt to retire at the age of sixty years.
It is on the basis of the note put up by the Joint Director (Pension), Prayagraj Division, Prayagraj that the District Minority Welfare Officer, Prayagraj has refused to reconsider his stand that gratuity may be payable to the petitioner though he has prematurely elected to retire at the age of 57 years 4 months and 16 days. For one he may clarify that the age of a retiring employee is never to be reckoned in terms of days and months. It is to be reckoned in terms of the completed age. Thus, so long as an employee does not turn fifty-eight, he is to be regarded as fifty-seven years old. The petitioner, therefore, is an employee, who has chosen to retire at the age of fifty-seven years. prematurely.
The Government Orders, under reference or rules, which these orders reflect or amplify, give effect to a scheme wherein a teacher, who serves for an extended tenure up to sixty-two years is deprived of his gratuity to which he would be entitled, if he were to retire at the conventional age of sixty years. He loses gratuity because he serves for two years more beyond the conventional years.
“Here is a case, where the petitioner has chosen to retire at the age of fifty-seven years, prematurely. The option to retire at the age of sixty years is to be understood in contra-distinction to the option to retire at the unconventional and the higher age of sixty-two; it is not to be understood as an option vesting a teacher with a right to receive gratuity only if he elects to retire at sixty. Retirement at sixty years is not an entitling fact, which leads the employee to acquire a right to receive gratuity, which he otherwise does not have. An employee gets his right to gratuity according to the number of the years that he serves.
Rather, if he chooses to serve, as already said, beyond the conventional age of sixty years, he is divested of that right for the extra remuneration of two years in regular service that he receives. The interpretation, based on the relevant Government Orders by the Joint Director (Pension), Prayagraj Division, Prayagraj and the District Minority Welfare Officer, Prayagraj, is the product of what is conventionally called ‘treading the beaten path’, which shows utter lack of application of mind and non-understanding of principle”, the court observed while allowing the petition.
The Court said that,
In future, the Additional Chief Secretary (Secondary Education), U.P, Lucknow will bear these remarks of the court in mind and pass appropriate orders so that these kind of perverse interpretations are not placed by the officials functioning in the Department of Secondary Education to the prejudice of teachers vis-a-vis their valuable right to receive gratuity to which they are otherwise entitled.
The Joint Director (Pension), Prayagraj Division, Prayagraj and the District Minority Welfare Officer, Prayagraj shall also take note of this order and will not repeat this kind of interpretation in future, if a similar set of rights were to arise for consideration.
“The order dated 02.12.2023, passed by the District Minority Welfare Officer, Prayagraj, is hereby quashed. A mandamus is issued to the respondents to sanction and calculate gratuity to the petitioner, of course, taking into account the total number of completed years of service rendered by him before prematurely retiring. The reckoning of the petitioner’s entitlement to gratuity shall be done within a period of fifteen days hence and gratuity determined shall be paid to the petitioner within next fifteen days thereafter”, the Court ordered.