1

Reserved

Court No. - 40

AFR

Case :- SPECIAL APPEAL DEFECTIVE No. - 651 of 2021

Appellant :- District Basic Education And Another

Respondent :- Shivkali And 4 Others

Counsel for Appellant :- Awadhesh Kumar

Counsel for Respondent :- Kamal Kumar Kesherwani

Hon'ble Manoj Misra,J.

Hon'ble Jayant Banerji,J.

(Delivered by Manoj Misra, J.)

1.This intra-court appeal arises from a judgment and order of a

Single Judge dated 02.02.2021 in Writ-A No.11578 of 2020 whereby,

the writ petition of the first respondent was allowed with a direction

upon the District Basic Education Officer, Basti (first appellant) and

the Finance and Account Officer (Basic Education), Basti (second

appellant) to compute the amount payable to the petitioner towards

gratuity in terms of the scheme formulated by the Government Order

dated September 16, 2009 and release the same along with interest at

the rate of 8% per annum from the date of filing the application for

gratuity till the amount is actually disbursed.

2.In brief, the facts giving rise to the appeal are as follows:-

2 (i).The husband of the first respondent was appointed as

Assistant Teacher on 11.03.1974 in a basic school under the Basic

Shiksha Parishad, Uttar Pradesh. Later, he was promoted on the post

of Headmaster. Initially, the age of superannuation was 58 years

which was enhanced to 60 years and, later, to 62 years. Before

enhancement of the age of superannuation to 62 years, by

Government Order No.6369/15-5-93-55/89, dated 23.11.1994, the

benefit of gratuity was introduced to teaching and non teaching staff

of basic education institutions for those who opt to retire on attaining

the age of 58 years. Such option, as per Clause 2 of the Government

2

Order, dated 23.11.1994, was to be exercised within 90 days from the

issuance of the Government Order. This period, however, was

extended by Government Order No.5491/15-5-2002-212/2001, dated

10.06.2002, extracted below:-

“f'k{kk vuqHkkx&5 la[;k& 5491@15 & 5&2002&

212@2001] fnukad 10 twu] 2002

isz"kd]

fnus'k pUnz dukSft;k]

fo'ks"k lfpo]

mRrj izns'k 'kklu]

bykgkcknA

lsok esa]

f'k{kk funs'kd] ¼csfld½ ,oa v/;{k]

mRrj izns'k csfld f'k{kk ifj"kn~]

bykgkcknA

fo"k;%mRrj izns'k csfld f'k{kk ifj"knh; f'k{kd@f'k{k.ksRrj

deZpkfj;ksa ds lsokfuo`frd ykHkkas esa ifjorZu gsrq fodYi

dh lqfo/kk fn;s tkus ds laca/k esa uhfr fu/kkZj.kA

egksn;]

mi;qZDr fo"k;d 'kklukns'k la[;k&

6369@15&5&93&55@89] fnukad 23-11-1994 ds vuqdze esa

eq>s ;g dgus dk funs'k gqvk gS fd mDr 'kklukns'k }kjk iznRr

fodYi dks lqfo/kk ds ykHk ls oafpr jg x;s csfld f'k{kk ifj"kn

f'k{kd@f'k{k.ksRrj deZpkfj;ksa ds laca/k esa fodYi ifjorZu dh

lqfo/kk iznku fd;s tkus dh ekax ij lE;d~ fopkjksijkUr Jh

jkT;iky ;g vkns'k iznku djrs gSa fd m0 iz0 csfld f'k{kk

ifj"knh; f'k{kdks@f'k{k.ksRrj deZpkfj;ksa }kjk lsokfuo`fRr ds ,d

o"kZ vFkkZr~ ftl 'kSf{kd l= eas mudh lsokfuo`fRr gksxh] mldks

igyh tqykbZ rd fodYi ifjorZu dj ldrs gSaA fdUrq ,sls

deZpkjh tks 58 o"kZ dh vk;q ij lsokfuo`fRr dk fodYi nsrs gSa]

dks lsokfuo`fRr ds iwoZ rd fodYi ifjorZu dh lqfo/kk vuqeU;

gksxhA ;g O;oLFkk bl 'kklukns'k ds tkjh gksus dh frfFk ls ykxw

3

gksxhA

2- ;g vkns'k foRr foHkkx ds v'kkldh;

la[;k&bZ&11@753 nl&2002] fnukad 4-6-2002 esa izkIr mudh

lgefr ls tkjh fd;s tk jgs gSaA

Hkonh;

¼fnus'k pUnz dukSft;k½

fo'ks"k lfpoA

2 (ii).Thereafter, on February 4, 2004, Government Order

No.289/79-6-04-28(5)/2004 was issued enhancing the age of

superannuation from 60 years to 62 years and, further, clarifying that

the retiral dues that were to be available on attaining the age of 58

years would now be available at the age of 60 years; and those retiral

dues that were to be available at the age of 60 years would now be

available at the age of 62 years. The said Government Order is

extracted below:-

“csfld ,oa lgk;rk izkIr mPp izkFkfed fo|ky;ksa ds f'k{kdksa dh

lsok fuo`fRr

vk;q 60@62 o"kZ

la[;k 289@79&6&04&28¼5½@2004

isz"kd] lsok esa]

Jh gfjjkt fd'kksj f'k{kk funs'kd ¼csfld½

lfpo] mRrj izns'k y[kuÅ

mRrj izns'k 'kkluA

f'k{kk vuqHkkx&6y[kuÅ% fnukad % 4 Qjojh] 2004

fo"k; % ifj"knh; izkFkfed fo|ky;] ifj"knh; mPp

izkFkfed fo|ky; rFkk mPp izkFkfed fo|ky;ksa ds v/;kidksa dh

vf/ko"kZrk vk;q orZeku 60 o"kZ ls 62 o"kZ fd;s tkus ds lEcU/k

esaA

4

egksn;]

'kklu }kjk lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS

fd ifj"knh; izkFkfed fo|ky;] ifj"knh; mPp izkFkfed fo|ky;

rFkk lgk;rk izkIr mPp izkFkfed fo|ky;ksa esa 'kklu }kjk l`ftr

inksa ij fu;ekuqlkj dk;Zjr v/;kidksa dh orZeku vf/ko"kZrk vk;q

esa o`f) dj nh tk;sA

vr% Jh jkT;iky egksn; rkRdkfyd izHkko ls ifj"knh;

izkFkfed fo|ky;] ifj"knh; mPp izkFkfed fo|ky; rFkk

lgk;rk izkIr mPp izkFkfed fo|ky;ksa esa 'kklu }kjk l`ftr inksa

ij fu;ekuqlkj dk;Zjr v/;kidksa dh orZeku vf/ko"kZrk vk;q dks

60 o"kZ ls c<kdj 62 o"kZZ fd;s tkus dh lg"kZ Lohd`fr iznku

djrs gSaA QyLo#i 58 o"kZ dh vf/ko"kZrk vk;q ij feyus okys

lsok uSo`fRrd ykHk vc 60 Ok"kZ dh vf/ko"kZrk vk;q ij rFkk 60

o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsok uSo`fRrd ykHk 62 o"kZ

dh vf/ko"kZrk vk;q ij vuqeU; gksxsaA

Jh jkT;iky egksn; ;g Hkh vkns'k iznku djrs gSa fd tks

f'k{kd tqykbZ] 2003 ds i'pkr~ vf/ko"kZrk vk;q iw.kZ dj l=kUr

ykHk ij py jgs gSa mUgsa Hkh vf/ko"kZrk vk;q o`f) lEcU/kh ykHk

iznku fd;k tk;sxkA

bl lEcU/k esa iwoZ esa fuxZr leLr 'kklukns'k mDr lhek

rd la'kksf/kr le>s tk;saxs rFkk mudh 'ks"k 'krsZa ;Fkkor~ jgsxhA

mRrj izns'k csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh] 1981

ds laxr fu;eksa esa vko';d la'kks/ku dh dk;Zokgh 'kklukns'k

tkjh gksus ds rhl fnu ds vUnj lqfuf'pr dj yh tk;sxhA

;g vkns'k foRr fOkHkkx ds v'kkldh; i= la[;k ;w0 vks0

bZ0&11&207@2004 fnukad 04-2-2004 esa izkIr lgefr ds

vUrxZr fuxZr fd;s tk jgs gSaA

Hkonh;]

g0@& gfjjkt fd'kksj]

lfpoA

2 (iii). After the age of superannuation was enhanced from 60

to 62 years, the State Government issued yet another Government

Order No.1754/79-5-09-02/2009, dated 16.09.2009, inter alia,

providing Death-Cum-Retirement Gratuity up to a maximum of Rs.10

lacs to those who opted to retire at the age of 60 years. Clause 5 of the

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said Government Order is relevant and is extracted below:-

“5- lsokfuo`fRrd xszP;qVh

60 o"kZ dh vk;q dk fodYi fn;s tkus ij lsokfuo`fRrd

xszP;qVh@e`R;q xszP;qVh dh vf/kdre /kujkf'k #0 10-00 yk[k

¼#i;s nl yk[k ek=½ rd lhfer gksxhA

2 (iv). The first respondent’s husband, whose date of birth was

01.07.1951, died in harness on 30.06.2010, that is even before he

could attain the age of 60 years. Before his death, first respondent’s

husband had not exercised his option to retire at the age of 60 years.

Consequently, the claim of the first respondent for release of death

gratuity was not acknowledged. As a result, the first respondent filed

Writ-A No.11578 of 2020 for a direction upon the respondents to

release the amount of death-cum retirement gratuity otherwise payable

under Government Order dated 16.09.2009 with interest at the rate of

18% per annum.

2 (v). The appellants contested the claim of the first respondent

on the ground that under the Government Order dated 23.11.1994

gratuity was payable upon exercise of option to retire at the age of 58

years, that too, within three months from the date of issuance of

Government Order. Later, the period to exercise the option was

extended, vide Government Order dated 10.06.2002 (supra), up to the

first day of July of the year at the end of which the incumbent would

have attained the age of superannuation, which means that the option

could be exercised up to the first day of July of the year in which the

incumbent would have attained the age of 58 years and not later.

According to the appellants, the first respondent’s husband had

crossed the age of 58 years without exercising the option therefore, it

would be deemed that he had not opted for the benefit of death cum

retirement gratuity and as such the same was not payable to the first

respondent.

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2 (vi).The case of the first respondent had been that the purpose

of the Government Order dated 23.11.1994 was to provide the benefit

of gratuity to those who opted to retire at the age of 58 years i.e. two

years before attaining the age of superannuation. This age of

superannuation was enhanced by Government Order dated February

4, 2004 from 60 years to 62 years. Thereafter, by Government Order

dated September 16, 2009 the benefit of death-cum-retirement

gratuity up to a maximum of Rs.10 lacs was available to those who

opted to retire at the age of 60 years. The time period to exercise the

option, under the Government Order dated 23.11.1994, was upto three

months from the date of issuance of the said Government Order but

this period was extended by the Government Order dated June 10,

2002 up to the first day of July of the year in which the incumbent

would have attained the age of superannuation. Since the age of

superannuation was increased from 60 years to 62 years and the

retirement benefits that were to be available on completion of 58 years

and 60 years, respectively, were to be made available on completion

of 60 years and 62 years, respectively, vide Government Order dated

04.02.2004 (supra), by necessary implication, this option became

exercisable up to the first day of July of the year in which the

incumbent would have completed the age of 60 years. And since in

terms of clause 5 of the Government Order dated September 16, 2009

the benefit of death-cum-retirement gratuity was available either on

death before completion of 60 years or on retirement at the age of 60

years, the first respondent was entitled to it. Thus, the case of the first

respondent is that as her husband could have exercised his option to

retire at the age of 60 years till the first day of July 2010 and, because

of his death a day before, he could not exercise the option, the claim

for death gratuity could not be denied.

2 (vii). The learned Single Judge accepted the contentions made

on behalf of the writ petitioner (i.e. first respondent herein) and by

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placing reliance on certain decisions, which we shall refer to later,

allowed the writ petition by issuing a direction upon the appellants to

compute the gratuity payable to the writ petitioner in terms of the

scheme formulated by Government Order dated September 16, 2009

with interest etc.

3.We have heard Sri K. Sahi along with Sri Awadhesh Kumar for

the appellants; Sri Kamal Krishna Kesharwani for the contesting

respondent no.1; and the learned Standing Counsel for the respondents

2 to 5.

4.Sri K. Sahi, who led the arguments for the appellants, submitted

that the decisions on which the learned Single Judge has placed

reliance have not taken into consideration that the benefit of option to

retire at the age of 58 years, which was later enhanced to 60 years, for

availing the benefit of gratuity had to be exercised, under the

Government Order dated 23.11.1994, within 90 days of the issuance

of that Government Order, and, under Government Order dated June

10, 2002, up to first day of July of the year in which the incumbent

would have completed the age of 58 years. But as this option was

never exercised by the husband of the first respondent up to the first

day of July, 2008, the first respondent was not entitled to the benefit

of death gratuity. It has been contended that the learned Single Judge

has failed to consider the true import of the Government Order dated

June 10, 2002.

5.Per contra, learned counsel for the contesting respondents

submitted that the Government Order dated June 10, 2002 has to be

read not in isolation but with the subsequent Government Orders

dated February 4, 2004 and September 16, 2009. By Government

Order dated February 4, 2004, the age of superannuation was

enhanced from 60 years to 62 years and it was clearly specified that

8

those benefits that were available on completion of the age of 58 years

would now be available on completion of the age of 60 years.

Following that, clause 5 of the Government Order dated September

16, 2009 clearly provided that the death - cum -retirement gratuity

would be available to those who opt to retire at the age of 60 years. It

was urged that a combined reading of the three Government Orders

would suggest that the last day to exercise the option for the benefit of

retirement at the age of 60 years on enhancement of the age of

retirement from 60 years to 62 years got extended up to the first day

of July in which the incumbent would attain the age of 60 years.

Consequently, as the date of birth of the husband of the first

respondent was 01.07.1951, he would have completed 60 years on

June 30, 2011 and, therefore, the last date for exercise of option by her

husband would be deemed to be the first day of July, 2010. But since

he died on June 30, 2010 i.e. a day before, he could not exercise his

option to retire at the age of 60 years hence the benefit of death

gratuity as payable under the Government Order dated 16.09.2009

could not be denied. It was thus submitted that the view taken by the

learned Single Judge suffers from no infirmity.

6.We have considered the rival submissions and have perused the

record carefully.

7.Before we deal with the rival submissions it would be apposite

to notice a few decisions that have been consistently followed in

connection with grant of relief to such claimants as the first

respondent. The earliest decision on the issue was a Division Bench

decision in the case of Smt. Ranjana Kakkar Vs. State of U.P. and

others: 2008 (10) ADJ 63. The controversy involved in that case was

that the Government had taken a decision to raise the retirement age

of the employees from 58 years to 60 years. Those who did not want

to continue up to the age of 60 years, were given an option to retire at

9

the age of 58 years with the benefits of Death-cum-Retirement

Gratuity, pension, family pension and general provident fund. The

employees who did not opt to retire at the age of 58 years and wanted

to avail two years of additional service upto the age of 60 years, were

not to be provided with the benefit of Death-cum-Retirement Gratuity.

The other benefits namely pension, family pension and general

provident fund were to be made available to both categories of

employees. In that case, the employee concerned had opted to retire at

the age of 60 years but as providence would have it he died in an

accident at the age of 45 years. The widow of that employee made a

representation to the employer stating that though her husband had

opted to continue in service upto the age of 60 years thereby foregoing

the benefit of Death-cum-Retirement Gratuity but as he died much

before attaining that age, he could not be deprived of the benefit of

Death-cum-Retirement Gratuity which would have, otherwise, been

available to him if he had not given an option to retire at the age of 60

years. The claim of the widow was rejected by the employer. The

widow invoked the writ jurisdiction of this Court. After considering

the true import of the beneficial provisions of the various Government

Orders, the Division Bench of this Court, in paragraphs 10, 11, 12 and

13 of the judgment, observed as follows:-

“10. The scheme of the Government Orders dated 24.12.1983 and

21.08.1990 was to give the benefit of the extended age of retirement

from 58 years to 60 years subject to the conditions that those

teachers, who will retire at the age of 58 years, will not be given

benefit of D.C.R.G and those, who want to take benefit of two years

additional service, will get the calculation of pension only upto age of

58 years. These benefits, as it is stated in the opening paragraph of

the Government Order dated 24.12.1983, were given for the purposes

of providing social security to the teachers. These benefits were

available to only those who could live up to the date of their

superannuation to avail these benefits. For those, who unfortunately

10

could not reach the age of 58 years, could not be taken to be covered

by the scheme.

11. The providence to survive upto the age of 58 years could not be

known to the teachers exercising options. The God has not yet

bestowed the man with the powers to foresee or to predict death. The

man arranges his affairs in accordance with the wisdom given to him

by God. The Almighty has reserved the powers of sustaining and

guiding human destiny. No one, who was required to give an option

under the scheme, could have predicted, whether he would survive to

claim the benefits.

12. Where an event cannot be foreseen and a person is invited to give

options with the understanding to arrange his affairs according to his

own wisdom, his choice should not be allowed to work to his

disadvantage after his death. He should be provided with the

maximum of the benefits and social security after his death. Late

Prof. Amarnath Kakkar did not live beyond the age of 45 years. He

may have planned for his affairs upto the age of 60 years, both for

himself and and his family. The God however willed otherwise. His

untimely death made his option unworkable. In order to give him

maximum benefits of the social security, which was the intention of

the Government Order dated 24.12.1983, he could not be denied the

D.C.R.G payable to him and calculated upto his death, for the

completed years of service rendered by him to the University. His life

was cut short and thus his option became unworkable and futile, on

his death at the age of 45 years. He could not be pinned down to his

option by the University, to deprive his family of the gratuity earned

by him and payable to his family.

13. The ‘gratuity’ is defined in Webster’s New Collegiate Dictionary

as something given voluntarily, or beyond obligation usually in

return for, or in anticipation of some service. The Black’s Law

Dictionary defined gratuity as a recompense or reward of service or

benefits given voluntarily without solicitation or promise. Late

Amarnath Kakkar could have given up gratuity voluntarily on his

option, if he had the occasion to avail the benefit of two years

11

additional service. When he could not avail the benefit and was not in

a position to change his option, he cannot be denied the reward by

way of gratuity payable to him on completing 58 years of service. The

event provided in his option i.e. the extended service up to the age of

60 years, became an impossibility to be performed by him and thus

his option would be deemed to be revoked in law, on principles of

frustration of contract.”

8.In the case of Noor Jahan Vs. State of U.P. and 4 others

(Writ-A No.40568 of 2016, decided on 04.01.2018), the writ

petitioner's husband died at the age of 57 years and before his death,

he could not exercise the option to retire at the age of 60 years and

therefore the benefit of death gratuity available otherwise under the

Government Order dated September 16, 2009 was denied. Aggrieved

by such denial, the widow of the incumbent filed writ petition. A

Single Judge Bench of this Court held as under:-

“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.

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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.”

9.Following the above decision as well as other decisions, in

Writ-A No.17399 of 2019 (Usha Rani Vs. State of U.P. and others),

decided on 07.11.2019, it was held as follows:-

“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

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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.............”

10.Following the above decisions, similar orders have been passed

in Writ-A No.11474 of 2020 (Savitri Vs. State of U.P. and others),

decided on 28.07.2021, and several other matters.

11.The issue that arises for our consideration is whether an

employee who, by a certain a date, could exercise an option to retire

14

early to avail the benefit of gratuity, dies before that date, and prior to

his death had not exercised that option, should his heirs be denied the

benefit of death gratuity which, otherwise, would have been available

to them had that employee died at that age after exercising the option.

12.To have an answer to the issue we would have to examine as to-

(a) what had been the purpose of conferment of such benefit on

exercise of the option; and (b) whether the Government Orders that

conferred the benefit had fixed a time period by which that option was

to be exercised, if so, whether the incumbent i.e. first respondent’s

husband had crossed the time limit by which he could have exercised

that option. In so far as the purpose of conferring such benefit is

concerned the same is obvious, which is to provide social security to

those who forego two years of additional service. There could be a

latent purpose as well, which is to encourage people to seek early

retirement may be to streamline the organization. Be that as it may, it

is a beneficial provision to accord social security to the employee and

his or her dependents therefore, an interpretation that promotes and

serves the purpose for which it is crafted must be preferred. Under the

circumstances, whatever the purpose might be, the same is subserved

where the nature exercises the option on behalf of the incumbent by

letting him not survive even upto the last day by which he could have

exercised the option. Therefore, denying the heirs/dependents of such

an incumbent the benefit of social security that, otherwise, would have

been available to them had the incumbent exercised his option would

defeat the very purpose for which the policy was made. Thus, to

ensure that the policy serves its purpose fully, in our view, where a

last date for exercise of the option is yet to arrive and before that date

the incumbent dies, without exercising his option, his dependents

should not be deprived of the benefit which they would have been

otherwise entitled to had the incumbent exercised his option.

15

13.In so far as the contention of the learned counsel for the

appellants that by Government Order dated June 10, 2002 the option

could have been exercised only upto first day of July in which the

incumbent was to attain the age of 58 years is concerned, the same is

not acceptable. Because a plain reading of the Government Order

dated June 10, 2002 would reflect that it is in two parts. The first part

is in respect of fixing the last date for exercise of option to retire early

to avail the benefits of early retirement whereas the second relates to

the last date for change of the option submitted earlier. In the first

part, the age of retirement is not mentioned. What is stated in the first

part is that those who could not exercise their option to avail the

benefits under the earlier Government Order dated 23.11.1994 may

exercise their option by the first day of July of the year in which they

attain the age of superannuation. The second part gives option to

those, who had already opted to retire at the age of 58 years, to change

their option before they retire. Meaning thereby that if suppose a

person has given an option to retire at the age of 58 years, before he

attains the age of 58 years, he can change the option. Thus, as by

Government Order dated February 4, 2004 the age of superannuation

was enhanced from 60 years to 62 years by specifically providing that

the benefits that were available on retirement at the age of 58 years

would now be available upon completion of the age of 60 years and

those that were to be available at the age of 60 years, would now be

available on completion of the age of 62 years, by necessary

implication, the option that could earlier be exercised upto the first

day of July in which the incumbent was to attain the age of 58 years

became exercisable upto the first day of July in which the incumbent

would attain the age of 60 years.

14.In the instant case, since the date of birth of the first

respondent’s husband was 01.07.1951, he would have completed 60

years on June 30, 2011. Thus, the last day by which he could have

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opted to retire at the age of 60 years would be the first day of July,

2010, which never came in the life time of the first respondent’s

husband. Thus, for all the reasons given above, the benefit of death

gratuity that would have been available to the incumbent's

dependents/ heirs on incumbent's death, before attaining the age of 60

years, under the Government Order dated September 10, 2009, would

be available to his heirs/dependents.

15.For all the reasons above, we find ourselves in agreement with

the view taken by the learned Single Judge. Consequently, the appeal

fails and is dismissed.

Order Date :- 6.10.2021

AKShukla/-