ASHWANI KUMAR MISHRA,J. - (1.) While entertaining the writ petition following orders were passed on 12.9.2019:- "Grievance is that upto date gratuity has not been paid and the benefit of revised pay scale has also been restricted from 16.7.2016. Reliance is placed upon a judgment of this Court in Writ Petition No. 678 o 2018 (Bhaskar Bhattacharya Vs. State of U.P. and others) decided on 6.4.2018 against which special appeal filed has also been rejected on 19.7.2019. Learned Standing Counsel may obtain instructions in the matter Post as fresh on 20.9.2019."
(2.) Learned Standing Counsel has obtained instructions from the Chief Development Officer, Jalaun at Orai, according to which, the petitioners were absorbed in the employment of Rural Development Department on 18.7.2016 and since a period of five years has not been completed on the date of petitioners' superannuation i.e. 31.5.2019, as such, petitioners are not entitled to payment of gratuity.
(3.) The question, as to whether, payment of gratuity can be restricted only to the period after absorption of the employee concerned came up for consideration before this Court in the case of Bhaskar Bhattacharya (supra). After examining the relevant government orders, this Court proceeded to observe as under:- "The submission of the learned counsel for the petitioner has force. The claim of the petitioners who were undisputedly employees of the DRDA, a Society registered under the Societies Registration Act , 1860 had been duly adjudicated by this court in W.P. No. 21610 of 2010 (Yogendra Nath Singh Vs. State of U.P. and others) which stood confirmed in the judgement of the Division Bench of this court in Special Appeal (D) No. 456 of 2015 vide judgement dated 7.7.2015 and therefore the benefit which became due to the petitioners under the judgments of the court cannot be undone or denied to them by introducing the G.O. dated 18.7.2016. Even otherwise the G.O. dated 18.7.2016 cannot over ride the statutory Rules framed under the U.P. Retirement Benefit Rules, 1961. The law is well settled that Rules cannot override the provisions of an Act and likewise orders or notifications cannot over ride the effect of statutory Rules. The learned standing counsel has also passed on to the court copy of the Government Order dated 8.10.2016 and submits that this G.O. Provides a cutoff date of 1.4.2005 for grant of benefit of gratuity and other retiral dues. I have examined this G.O. Dated 8.10.2016 and I find that it supports the claim of the petitioners rather that defeat the same. This Government Order provides that the benefit of the Rules 1961 for grant of granting and other retiral benefits shall apply to employees of Government aided educational institutions as well as self managed institutions including those to whom the pre-1.4.2005 pension scheme was applicable. In my view this Government Order does not in any manner deny the claim of the petitioners of gratuity and other retiral benefits. For reasons aforesaid, the petitioners are entitled for payment of gratuity in terms of the direction given by the Division Bench of this court in Special Appeal No. 456 of 2015 and accordingly a mandamus is issued to the respondents to release the arrears of gratuity to the petitioners within a period of two months from the date of receipt of a certified copy of this order. The above writ petition stand allowed." ;