- (1.) These two writ petitions involve a common question of law and the facts giving rise to the cause are also similar, therefore, the writ petitions were heard together and are being decided by this common judgement. Both the petitioners are Class IV employees and have worked in King George's Medical College, Lucknow (now University) (hereinafter referred to as the KGMU) till they attained the age of superannuation. The petitioner in Writ Petition No. 2464 (SS) of 2006 is said to have retired on 28.2.2003 whereas the petitioner in Writ Petition No. 5686 (SS) of 2009 is said to have retired from service on 11.3.2003 on completion of 60 years of age. It appears that the petitioner in Writ Petition No. 2464 (SS) of 2006 submitted a representation for payment of gratuity which having been left attended gave rise to a Writ Petition No. 1860 (SS) of 2005 and the same was disposed of vide order dated 11.3.2005 directing the respondent authorities to consider the representation filed by the said petitioner and pass reasoned and speaking order thereon. In compliance of the order passed by this Court, an order was passed by the competent authority on 27.5.2005 in relation to the petitioner Ram Swaroop who has filed Writ Petition No. 2464 (SS) of 2006. It is against this order dated 27.5.2005 that the aforesaid writ petition came to be filed seeking a prayer for quashing of the said order coupled with other reliefs. Writ Petition No. 5686 (SS) of 2009 was filed seeking a writ of mandamus commanding the opposite parties to pay gratuity to the petitioner alongwith interest @ 12% p.a.
(2.) The respondents filed counter affidavits wherein the relief sought by the petitioners was opposed on the strength of a government order issued on 24.1.1984. The petitioners faced with the defence on the basis of government order dated 24.1.1984, thereafter appear to have filed amendment applications and a challenge to the validity of the said government order appears to have been raised in both the writ petitions. In this manner the validity of the government order having been questioned, the prayer was made for quashing the said government order. The petitioners have questioned the validity of the government order after having attained the age of 60 years and at the relevant point of time, it was not possible for the university authorities to turn the clock back so as to implement the said government order in any manner except to defend the cases on the premise of the essence of the government order according to which the petitioner could continue to discharge their duties on full salary beyond 58 years of age only on the basis of option to lose the benefit of gratuity in terms of the government order placed reliance upon by the respondents.
(3.) It is an admitted position of facts that the petitioners do not fall within the definition of employee as defined under the Payment of Gratuity Act, 1972 since they are governed under the U.P. State Universities Act. The petitioners being non-teaching staff in the KGMU are governed under the King George's Medical University Act, 2002. By virtue of Section 41(m), the emoluments and other conditions of service including the age of retirement etc. are to be regulated under the Statutes. It is not disputed that prior to the issuance of government order dated 18.11.2004, the retiral age of non-teaching Group-D staff was 58 years which was raised to 60 years by means of the aforesaid government order. As regards the payment of gratuity, there was a provision made in the government order dated 24.1.1984 which provides the retiral age as 58 years subject, however, that an employee may continue up to 60 years of age on foregoing his claim of gratuity. On a close scrutiny of the government order relied upon, it is found that with the continuance of the employee up to the age of 60 years, he would get full salary instead of pension and the difference so paid by the University authorities would correspond almost to the same amount as a person may get towards the gratuity on accepting his retirement at the age of 58 years. This facility of two years' extended service with regular salary to the employees merges the benefit of gratuity in the form of regular full salary and remained a matter of choice/option throughout. The petitioners have also availed the benefit of the said government order and have chosen to serve the respondents up to attaining the age of 60 years. There was no objection to the government order raised at any point of time. It is only after the date of retirement that the petitioners have come up with a grievance against the validity of the government order issued in the year 1984. The respondents during the course of hearing have also shown a government order dated 25.10.1997 wherein it is specifically provided that gratuity shall not be admissible to the non-teaching staff who serve up to the age of 60 years.;