RAM SWAROOP Vs. SUPERINTENDENT, GANDHI MEMORIAL & ASSOCIATED

JUDGEMENT

(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.

(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.