Sushila Yadav vs State Of U P And 5 Others
2021 Latest Caselaw 11089 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								AFR
 
Reserved on 02 September 2021
 
Delivered on  15 September 2021
 
Court No. - 34
 

 
Case :- WRIT - A No. - 9105 of 2021
 

 
Petitioner :- Sushila Yadav
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Kamal Kumar Kesherwani
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Singh,Awadhesh Kumar
 
And
 
Case :- WRIT - A No. - 10581 of 2021
 

 
Petitioner :- Abhishek Nand Sinha
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Akhilesh Kumar
 
Counsel for Respondent :- C.S.C.,Mrigraj Singh
 
And
 
Case :- WRIT - A No. - 11015 of 2021
 

 
Petitioner :- Maya Devi
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Awadh Narain Rai
 
Counsel for Respondent :- C.S.C.,Sanjay Kumar Srivastava
 

 
Hon'ble Yashwant Varma,J.

Heard Sri Kamal Kumar Kesherwani, Sri Akhilesh Kumar, Sri Awadh Narain Rai, learned counsels for the petitioners, Sri J.N. Maurya, learned Chief Standing Counsel assisted by Sri Chandan Kumar, learned Standing Counsel, Mrigraj Singh, Sanjay Kumar Singh and Sri Awadhesh Kumar, learned counsel for the respondents.

These three writ petitions were with consent heard together and are being disposed of by this common judgment.

The three petitioners here are the heirs of teachers who were working in educational institutions administered by the Board of Basic Education1. Those teachers died while in service and prior to reaching the age of retirement. The age of retirement of teachers as prescribed in Rule 29 of the U.P. Basic Education [Teachers] Service Rules, 19812 was initially fixed at 58 years. It was thereafter increased to 60 years. In terms of the Twelfth Amendment to those Rules introduced on 9 November 2011, the age of retirement was ultimately increased to 62 years. The teachers in respect of whom the petitioners assert a right to receive gratuity admittedly died before attaining the age of superannuation. Since the respondents had refused to accede or attend to that claim, they approached this Court and preferred the instant writ petitions. The respondents on instructions apprised the Court that they would not be entitled to receive gratuity since those teachers had not exercised an option to receive the same prior to their death.

The petitioners have placed reliance upon the decision rendered by a learned Judge in Usha Rani Vs. State of U.P. And 6 Others3 to contend that the question of whether gratuity would be payable irrespective of whether an option had been exercised by an employee prior to attaining the age of superannuation and untimely death stood settled in their favour. Usha Rani was dealing with a case where the employee had died prior to attaining the age of retirement which at the relevant time was fixed at 60 years. The learned Judge taking note of the previous decisions rendered by the Court in the matter of Noor Jahan Vs. State of U.P. and 4 other4 and Smt. Omwati Vs. State of U.P. and 3 others5 held that the benefit of gratuity could not be denied to an employee solely on account of an alleged failure on his part to exercise the requisite option prior to his untimely demise and before he had reached the age of superannuation. The learned Judge dealing with the aforesaid question held thus: -

"Similar issue was considered by this Court in the matter of Noor Jahan (Supra) in which this Court vide order dated 04.01.2018 has clearly held that Government Order dated 16.09.2009 does not provide any bar for payment of gratuity in case petitioner's husband had not given option for retirement at the age of 60 years. Relevant paragraphs of the said judgment is quoted below:-

"Learned counsel for the petitioner submits that the order impugned is wholly arbitrary, inasmuch as under the relevant scheme for payment of gratuity, the claim of petitioner's husband is otherwise covered, and the Government Order dated 16.9.2009 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.

Sri R.B. Yadav, learned counsel for the respondent nos.3 and 4, submits that the denial of gratuity to petitioner is in accordance with the Government Order.

I have heard learned counsel for the parties, and have perused the materials brought on record.

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.

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."

In the matter of Smt. Omwati (Supra), Court had dealt for payment of interest upon delayed payment of gratuity and held that petitioner is entitled for interest. Relevant paragraph of the said judgment is quoted below:-

"The only other issue that survives for consideration is whether, the petitioner is entitled to payment of interest on the delayed payment of gratuity.

This aspect has been dealt with by Division Bench of this Court in Special Appeal (Defective) No.430 of 2016, Smt. Nazma Khatoon Vs. State of U.P. and others where a learned Single Judge had rejected the prayer for interest on delayed payment of gratuity. However, the Division Bench opined that interest is a necessary corollary to the retention of money by another person. It is neither compensatory nor penal in nature. It was so held, upon an earlier Division Bench decision in Smt. Ranjana Kakkar W/O Late Prof. Amarnath Kakkar Vs. State of Uttar pradesh and others, 2008(10) ADJ 63 (DB).

The Division Bench in Smt. Nazma Khatoon (supra) went on to award 8% interest on the gratuity payable.

Counsel for the petitioner has also relied upon the Government order No.SA-3-1901/10-2002-971/80 dated 30.10.2002, which provides for payment of interest on delay in payment of gratuity and post retiral benefits beyond a period of 3 months from the date they are payable.

Under the circumstances, this Court considers it appropriate to award the same rate of interest on the delayed payment as has been awarded by the Division Bench in Smt. Nazma Khatoon(supra), the rate being 8%.

For the reasons given above, this writ petition is allowed. The impugned order passed by the District Inspector of Schools, Sambhal dated 01.01.2018 is hereby set aside. The respondents are directed to calculate the gratuity payable to the petitioner along with 8% interest thereon by a speaking order and to ensure payment of the said amount to the petitioner within a period of six weeks from the date, a certified copy of this order is filed before him."

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 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. 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. "

The decision of the learned Judge in Usha Rani was subjected to an intra court appeal being State of U.P. And 6 Others Vs. Usha Rani6 That appeal came to be dismissed by the Division Bench on 28 January 2021 in the following terms: -

"By this appeal, a challenge is made to the judgment dated 07.11.2019 and its correction order dated 12.12.2019 whereby the writ petition preferred by the non-appellant was allowed. The writ petition was ordered to governed by the judgment in the case of Smt. Sarvesh Kumari Vs. State of U.P. others decided on 14.05.2019 and also in the leading case of Smt. Ranjana Kakkar Vs. State of U.P. and others reported in 2008 (10) ADJ 63. In the case of Smt. Ranjana Kakkar (Supra) facts were almost similar.

As per the government order, the employees were given option to continue in service beyond the normal period of retirement. The extension of service was permitted from 58 years to 60 years but with denial of the benefit of gratuity.

Options were sought and given by the employees in case of Smt. Ranjana Kakkar (Supra), but in the present case, no option was given by the non-appellant to continue her in service beyond the normal age of retirement with denial of the benefit of gratuity. It is however fact that in absence of option under the government order, it was taken to be a case of deemed option and accordingly family was denied benefit of gratuity. The age of the deceased was 44 years while in the case of Smt. Ranjana Kakkar (Supra), it was 45 years.

In the light of the aforesaid, what we find that the employee who had not continued in service after attaining the age of 58 years in a given case or 60 years in other cases would mean effective option to continue in with for denial of gratuity.

Accordingly, what we find that the present case is covered by the judgment of this court in the case of Smt. Ranjana Kakkar (Supra). An exception can be carved only when they continue in service without withdrawal of option even after the attaining the age of 58 years in a given case or beyond 60 years in other cases as normal age of retirement was changed from 58 years to 60 years by the amendment in the year 2004.

This Court has taken a view to hold that an employee continue in service beyond 58 years and died thereupon would not be entitled to seek benefit of gratuity in the case of State of U.P. through its Secretary Vs. Prabha Shukla decided on 16.12.2020 but it would not be applicable to the facts of this case.

This appeal is accordingly, dismissed."

The Court is informed that the State has preferred a Special Leave Petition before the Supreme Court which is still pending disposal. This Court dealing with identical matters had been disposing of writ petitions on consent of the respondents who conceded that the issue stood settled in light of the judgment rendered by the Court in Usha Rani. However, Sri J.N. Maurya, learned Chief Standing Counsel appeared when these matters were taken up initially and submitted that various Rules and Government Orders which would apply had not been brought to the attention of the learned Judge who had proceeded to decide Usha Rani. It was his submission that various previous decisions of the Court having a bearing on the question had also not been considered in Usha Rani. Learned Chief Standing Counsel submitted that the judgment in Usha Rani would thus merit reconsideration. Since only a legal question was raised, the respondents submitted that the same may be decided by the Court without inviting counter affidavits. A compilation of Rules and various Government Orders issued from time to time was also circulated by the respondents amongst parties and placed on the record.

The sole question which stands posited is whether a failure on the part of an employee to have exercised an option prior to his untimely demise would result in his heirs being deprived of the right to claim gratuity.

The payment of a gratuity insofar as Primary Institutions, Junior High Schools, Higher Secondary Schools and Degree Colleges was governed originally by the Rules for Grant of Gratuity to the Teachers of Aided Educational Institutions. These Rules came into effect from 01 April 19647. Those Rules were to apply to all members of the teaching staff of State aided educational institutions of the categories noticed above run either by a local body or private management and recognised and aided by the Department of Education of the State. Rule 5 of these Rules provided that a gratuity equal to six times the pay last drawn by a teacher at the time of his death would be payable provided he had put in not less than three years of continuous service prior to his demise. That Rule reads as follows: -

"5. A gratuity equal to six times of the pay last drawn by a teacher at the time of his death while in service provided he has put in not less than three years continuous service before his death.

Notes - (1) No gratuity will, however, be admissible to the family of a teacher whose death takes place after retirement or of a re-employed pensioner.

(2) "Continuous Service" means all whole-time service whether temporary, officiating or permanent, rendered either in one or more of the State aided educational institutions of any of the categories mentioned in Rule 3 and includes all periods spent on leave on average pay, or on medical certificate, but it does not include leave without pay."

Rule 5 essentially provided for the payment of gratuity in an event where a teacher died prior to retirement subject to the condition that he had rendered not less than three years of continuous service prior to his demise. Rule 6 of the 1964 Rules is in the following terms: -

"6. A teacher covered by these rules, shall on completion of three years' continuous service, make a nomination conferring on one or more members of his family, the right to receive any gratuity that may be admissible under these rules. The nomination shall be made in one of the attached forms as may be appropriated in the circumstances of the case.

Note - If the teacher has not left any family, no gratuity will be payable under these rules."

Rule 13 of those Rules which would be of some significance to the question which has arisen is reproduced hereinbelow: -

"13. In the event of no nomination having been made for this purpose before the death of a teacher or in the event of any dispute, the Director of Education, U.P., shall be the final authority and whatever award shall be made by him shall be binding on all parties and no appeal or representation shall lie against his decision."

On 08 March 1978, a Government Oder came to be issued dealing with the subject of retiral benefits payable to teachers working in institutions administered by the Board. It essentially provided that pensionary benefits would be payable to teachers working in the aforesaid categories of institutions at the same rate as was being paid to employees in government colleges. The Government Order in this respect made the following provisions:-

"मुझे आपसे यह कहने का निदेश हुआ है कि उत्तर प्रदेश बेसिक शिक्षा परिषद् द्वार संचालित प्राइमरी एवं जूनियर हाई स्कूलों के शिक्षकों को जो लाभत्रयी योजना से अनुशासित हैं वर्तमान नियमों के अधीन जो सेवा निवृत्तिक लाभ उपलब्ध हैं वे राजकीय कर्मचारियों को अनुमन्य पेंशन आदि से अत्यल्प हैं, जिससे वे गत कुछ समय से यह मांग कर रहे थे कि उनकी सेवा निवृत्तिक लाभ इस प्रकार स्वीकृत किये जायें कि उन्हें राज्य कर्मचारियों को अनुमन्य दर पर पेंशन प्राप्त कर सकें। इस विषय पर सम्यंकल्प से विचारोपरान्त शासन ने यह निर्णय लिया है कि 1 मार्च, 1977 को या उसके पश्चात् सेवा निवृत्त हुये या सेवा निवृत्त होने वाले उक्त विद्यालयों के समस्त स्थाई पूर्णकालिक तथा नियमित शिक्षकों को उसी दर पर पेंशन देय होगी, जिस दर पर राजकीय विद्यालयों के समान स्तर एवं श्रेणी के शिक्षकों को अनुमन्य है तथा उसका आगणन भी राजकीय कर्मचारियों के लिये लागू प्रक्रिया के अनुसार किया जायेगा। राज्य कर्मचारियों को अनुमन्य पेंशन की दरें संलग्नक-1 में अंकित है। यह निर्णय निम्नलिखित प्रतिबन्धों के अधीन है-

(1) शिक्षकों को डेथ-कम-रिटायरमेन्ट-ग्रेच्यूटी या मृत्यु के पश्चात् उनके आश्रितों को पारिवारिक पेंशन देय नहीं होगी।

(2) सामूहिक जीवन बीमा योजना का लाभ उन्हें पूर्ववत् मिलता रहेगा।"

Dealing with the issue of submission of an option that Government Order in paragraph 2 made the following provisions: -

"2. मुझे आपसे यह भी कहने का निदेश हुआ है कि उक्त योजना के अंतर्गत पेंशन प्राप्त करने के लिए प्रत्येक कर्मचारी को इस बात का लिखित विकल्प देना होगा कि वह इस योजना के अधीन पेंशन प्राप्त करना चाहेगा अथवा शासनादेश सं0ए-5355/15-3133/1962, दिनांक 17 दिसम्बर, 1965 द्वारा प्रसारित लाभत्रयी योजना के अन्तर्गत पेंशन और उत्तर प्रदेश बेसिक शिक्षा परिषद् भविष्य निधि नियमावली, 1975 के अन्तर्गत बेसिक शिक्षा परिषद् का अंशदान प्राप्त करेगा। जो अध्यापक नगर महापालिका की सेवा से हस्तान्तरित होकर उत्तर प्रदेश बेसिक शिक्षा परिषद् की सेवा में आये है और जिन्होंने लाभत्रयी योजना के लिये विकल्प नहीं दिया है, उन्हे भी इस बात का विकल्प देना होगा कि वह इस योजना के अधीन पेंशन लेना चाहेगे अथवा सम्बन्धित नगर महापालिका के विनियमों के अनुसार पेंशन के लाभों का उपयोग करना चाहेंगे। उक्त विनियमों के अन्तर्गत देय पेंशन के साथ उत्तर प्रदेश बेसिक शिक्षा भविष्य निधि नियमावली, 1975 के अन्तर्गत देय परिषदीय अंशदान अनुमन्य नहीं होगा और उनके खाते में जो कुछ भी परिषदीय अंशदान जमा है, वह संचालित ब्याज सहित, उपरोक्त प्रस्तर-1 (4) में इंगित लेखा शीर्षक में जमा करा लिया जायेगा। मार्च, 1, 1977 के पश्चात् जो भी अध्यापक बेसिक शिक्षा परिषद् द्वारा नियुक्त किये गये हैं या किये जायेंगे उन पर यह योजना अनिवार्य रुप से लागू होगी और उनसे कोई विकल्प भराना आवश्यक नहीं होगा।"

In paragraph 6, the Government Order stipulated that all options would have to be submitted by 30 June 1978. Paragraph 6 read thus: -

"6. इस राजाज्ञा से संलग्न विकल्प-पत्र पर प्रत्येक सहायक/प्रधान से विकल्प प्राप्त कर लिया जाये और तद्नुसार उनको सेवा पुस्तिकाओं से इस विकल्प-पत्र को सुरक्षित रखा जाये। यह विकल्प-पत्र दिनांक 30 जून, 1978 तक प्रत्येक अध्यापक से प्राप्त कर लिया जाये और 15 जुलाई 1978 तक इस सम्बन्ध में हुई प्रगति से शासन को अवगत कराया जाये। एक बार किया गया विकल्प अंतिम और अपरिवर्त्तनीय होगा।"

The aforesaid Government Order appears to have been issued to give effect to the policy decision to extend benefits of pension to employees and to take cognizance of the provident fund scheme which had come to be introduced in the meanwhile and pursuant to the promulgation of the U.P. Basic Education Provident Fund Rules, 1975. By a Government Order of 06 June 1981, the last date for submission of options was extended up to 31 December 1981. It further provided that the aforesaid date would not be extended in future. The relevant extract of the Government Order is reproduced hereunder: -

"उपरोक्त विषयक पर अतिरिक्त शिक्षा निदेशक (बेसिक) के अर्द्धशासकीय पत्रांक पेंशन-2-16124/बावन-9(85)/80-81 के संदर्भ में मुझे आपसे यह कहने का निर्देश हुआ है कि उक्त पात्र में वर्णित स्थिति में राज्यपाल महोदय ने शासनादेश संख्या 5197/15-5-79/77 दिनांक 8-3-78 में उत्तर प्रदेश शिक्षा परिषद् द्वार संचालित स्कूलों के शिक्षकों के संबंध में संशोधित पेंशन योजना को स्वीकार करने का विकल्प-पत्र प्रस्तुति किये जाने की तिथि को जो उक्त शासनादेश दिनांक 8-3-78 के पैरा-6 के अनुसार 30-6-78 तक था, 31 दिसम्बर, 1981 तक बढ़ायें जाने की स्वीकृति प्रदान कर दी है। अतः आपसे अनुरोध है कि आप सभी अधिकारियों एवं बेसिक शिक्षा परिषद् के अधीन कार्यरत अध्यापकों को यह निर्देश दे दें कि उक्त शासनादेश दिनांक 8-3-78 में स्वीकृत पेंशन योजना के विषय में विकल्प पत्र भरे जाने की पूरी कार्यवाही 31-12-81 के पूर्व ही पूर्ण कर ली जाये। भविष्य में अब इस तिथि को बढ़ाया जाना संभव नहीं होगा।"

By another Government Order of 31 March 1982, the State provided that teachers employed in Junior High Schools, Secondary Institutions and Degree Colleges as well as those employed in Primary and Junior High Schools administered by the Board would be entitled to a family pension at par with facilities being provided to the State Government employees. That Government Order came to be issued in light of the the State framing the "Rajya Sahayata Prapt Uchchatar Madhyamik Vidyalayo Ke Adhyapako Ki Mrityu Tatha Sewa Nivritee Aanutoshik Ki Niyamawali"8. These Rules were published in the Gazette of 29 August 1981. In terms of Rule 2 thereof, they were to come into effect from 30 June 1978. As is manifest from the title of the 1981 Rules, they were to apply to Higher secondary educational institutions. This is further evident from the fact that the 1981 Rules in turn refer to the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Rules, 1971. Though these Rules strictly speaking have no application to the present writ petitions which deals with the case of teachers who were working in primary educational institutions, since they were referred to in extenso by the respondents, the Court deems it apposite to briefly notice the provisions made therein.

Rule 3 of the 1981 Rules was in the following terms: -

"3. यह नियमावली वेतन वितरण अधिनियम, 1971 की परिधि में 30-6-78 या उसके पश्चात कार्यरत केवल उन राज्य सहायता प्राप्त उच्चतर माध्यमिक विद्यालयों के अध्यापकों पर लागू होगी जो किसी स्थानीय निकाय अथवा किसी अशासकीय प्रबन्धतन्त्र द्वारा संचालित है तथा जो 58 वर्ष की आयु पर सेवानिवृत्त होने के पक्ष में अपना विकल्प इस नियमावली की विज्ञप्ति की तिथि के छः मास के अन्दर दे देंगे। विकल्प का एक बार प्रयोग कर लेने पर वह अन्तिम समझा जायेगा। सेवानिवृत्ति की तिथि समाप्त मानी जायेगी।"

Rule 4 provided as under:-

"4. इस नियमावली की विज्ञप्ति की तिथि के उपरान्त नियुक्त अध्यापकों द्वारा अपने स्थायीकरण की तिथि के दो वर्षों के अन्दर 58 वर्ष की आयु पर सेवानिवृत्ति होने के पक्ष में अपना विकल्प न देने पर यह नियमावली उस पर लागू नहीं होगी। विकल्प का एक बार प्रयोग कर लेने पर वह अन्तिम समझा जायेगा।"

On 03 December 1991 the State Government issued another Government Order dealing with the issue of the demand by teachers and other employees working in primary schools and Junior High Schools run by the Board to modify options that may have been submitted by them. Dealing with the aforesaid that Government Order made the following provisions;-

"मुझे उपर्युक्त विषयक शासनादेश संख्या 5197/15-5-79/77 दिनांक 8-3-78 तथा शासनादेश संख्या 3181/15-5-81-79/77 दिनांक 6-6-81 के अनुक्रम में से यह कहने का निदेश हुआ है कि अपरिहार्य कारणोंवश कतिपय शिक्षकों द्वारा निर्धारित अवधि तक या तो विकल्प पत्र भरे ही नहीं जा सके अथवा त्रुटिपूर्ण ढंग से भरे गये। फलस्वरुप ऐसे शिक्षक उक्त शासनादेशों द्वारा प्रदत्त सुविधा के लाभों से वंचित रह गये थे और अधिकांश जनपदों के शिक्षक निरन्तर यह मांग कर रहे हैं कि उन्हे उक्त शासनादेश में अनुमन्य सुविधा का लाभ प्रदान किया जाये। चूंकि उक्त शासनादेशों द्वारा अनुमन्य सुविधा का लाभ प्राप्त करने हेतु निर्धारित अवधि समाप्त हो चुकी थी, जिसके कारण उत्तर प्रदेश बेसिक शिक्षा परिषद् द्वारा संचालित स्कूलों के शिक्षकों जो उक्त सुविधाओं से वंचित रह गये थे, को उक्त सुविधा दिया जाना सम्भव नहीं हो पा रहा था। अतः परिषदीय शिक्षकों द्वार निरन्तर की जा रही इस मांग पर सम्यक् विचारोपरान्त राज्यपाल महोदय ने उन शिक्षकों जो उक्त शासनादेश के अन्तर्गत अनुमन्य लाभ प्राप्त करने हेतु विकल्प देने से वंचित रह गये थे अथवा जिन्होंने पुरानी पेंशन योजना के अन्तर्गत विकल्प प्रस्तुत किया था, को उक्त शासना-देश में निर्धारित अन्य नियमों/शर्तों व प्राविधानों के अन्तर्गत अन्तिम रुप से 90 दिन के अन्दर निर्धारित प्रपत्रों पर पुनः विकल्प प्रस्तुत किए जाने की स्वीकृत सहर्ष प्रदान कर दी है। मुझे यह भी कहना है कि विकल्प पुनः प्रस्तुत किये जाने की उक्त सुविधा उत्तर प्रदेश बेसिक शिक्षा परिषद् के अधीन कार्यरत शिक्षणेत्तर कर्मचारियों को भी आवश्यकतानुसार अनुमन्य होगी।

2. मुझे यह भी कहने का निदेश हुआ है कि जो कार्यरत शिक्षक/शिक्षणेत्तर कर्मचारी इस शासनादेश में दी जा रही सुविधा का लाभ उक्त निर्धारित अवधि के अन्दर प्राप्त करने हेतु विकल्प-पत्र प्रस्तुत नहीं करेंगे उनके सम्बन्ध में यह स्वतः मान लिया जायेगा कि उन पर नयी पेंशन योजना लागू है। इस शासनादेश के निर्गत होने की तिथि के पश्चात् नियुक्त शिक्षक/शिक्षणेत्तर कर्मचारी स्वतः इस सुविधा से आच्छादित माने जायेंगे।"

On 23 November 1994 yet another Government Order came to be issued dealing with the subject of gratuity and provided as follows: -

"उपर्युक्त विषयक सचिव उत्तर प्रदेश बेसिक शिक्षा परिषद् इलाहाबाद के पत्रांक बे0शि0प0/पेंशन/17066/92-93 दिनांक 30-10-92 के संदर्भ में मुझे यह कहने का निदेश हुआ है कि उत्तर प्रदेश बेसिक शिक्षा परिषद् के अधायपकों एवं शिक्षणेत्तर कर्मचारियों, सहायता प्राप्त गैर सरकारी जूनियर हाई स्कूलों के शिक्षकों एवं शिक्षणेत्तर कर्मचारियों को माध्यमिक शिक्षकों की भांति 58 वर्ष की आयु पर सेवा निवृत्त होने का विकल्प देने की स्थिति में ग्रेच्युटी की सुविधा दिये जाने की मांग की है। सम्यक् विचारोपरान्त श्री राज्यपाल यह आदेश प्रदान करते है कि जिस प्रकार राज्य सहायता प्राप्त माध्यमिक विद्यालयों के शिक्षकों को 58 वर्ष की आयु पर सेवा निवृत्त होने का विकल्प देने पर राजकीय कर्मचारियों की भांति ग्रेच्युटी की सुविधा अनुमन्य है, उसी प्रकार उ0प्र0 बेसिक शिक्षा परिषद् के अध्यापकों एवं शिक्षणेत्तर कर्मचारियों, सहायता प्राप्त गैर सरकारी माध्यमिक विद्यालयों के शिक्षणेत्तर कर्मचारियों तथा सहायता प्राप्त गैर सरकारी जूनियर हाई स्कूलों शिक्षकों एवं शिक्षणेत्तर कर्मचारियों को 58 वर्ष की आयु में सेवा निवृत्त होने की दशा में ग्रेच्युटी की सुविधा प्रदान की जाये। यह सुविधा उन्ही अध्यापकों एवं कर्मचारियों को अनुमन्य होगी, जो 58 वर्ष की आयु पर सेवा निवृत्त होने का विकल्प निर्धारित प्रपत्र पर प्रस्तुत करेंगे। यह सुविधा उपरोक्त वर्णित सभी शिक्षकों/कर्मचारियों पर इन आदेशों के जारी होने की तिथि से लागू होगी।

2. मुझे यह भी कहना है कि प्रश्नगत लाभ उन्ही अध्यापकों/कर्मचारियों को अनुमन्य होगा जो संलग्न निर्धारित प्रपत्र पर शासनादेश जारी होने के दिनांक से 90 दिन के अन्दर दो प्रतियों में संस्था के माध्यम से पेंशन स्वीकृत करने वाले अधिकारी के पास अपना विकल्प पत्र प्रेषित करेंगे। निर्धारित तिथि तक विकल्प पत्र न प्रस्तुत किये जाने पर यह स्वतः मान लिया जायेगा कि संबंधित अध्यापक या कर्मचारी इस राजाज्ञा में स्वीकृत सुविधा का लाभ प्राप्त नहीं करना चाहता। एक बार प्रस्तुत किया गया विकल्प अन्तिम तथा अपरिवर्तनीय होगा।"

A reading of the provisions so made establishes that gratuity was provided to be payable subject to the teacher submitting an option of retiring at the age of 58 years. It becomes relevant to note that by this time the age of superannuation had been increased from 58 years to 60 years. The Government Order further required all options to be submitted by existing employees within 90 days of the issuance of that Order. A Government Order of 28 November 1998 taking into consideration the report of the Pay Commission of 1997 enhanced the quantum of gratuity payable to a maximum of Rs. 3.50 Lakhs.

Taking up the issue of a claim of teachers and employees seeking to modify options that may have already been submitted, the State Government on 10 June 2002 issued the following directions: -

"विषय:- उ0प्र0 बेसिक शिक्षा परिषदीय शिक्षक/शिक्षणेत्तर कर्मचारियों के सेवा निवृत्तिक लाभों में परिवर्तन हेतु विकल्प की सुविधा दिए जाने के सम्बन्ध में नीति निर्धारण।

महोदय,

उपर्युक्त विषयक शासनादेश संख्या- 6369/15-5-93-55/89, दिनांक 23-11-94 के अनुक्रम में मुझे यह कहने का निदेश हुआ है कि उक्त शासनादेश द्वारा प्रदत्त विकल्प की सुविधा के लाभ से वंचित रह गये बेसिक शिक्षा परिषद शिक्षक/शिक्षणेत्तर कर्मचारियों के सम्बन्ध में विकल्प परिवर्तन की सुविधा प्रदान किये जाने की मांग पर सम्यक विचारोपरान्त श्री राज्यपाल यह आदेश प्रदान करते है कि उ0प्र0 बेसिक शिक्षा परिषदीय शिक्षकों/शिक्षणेत्तर कर्मचारियों द्वारा सेवानिवृत्त के एक वर्ष पूर्व अर्थात् जिस शैक्षिक सत्र में उनकी सेवानिवृत्ति होगी, उसकी पहली जुलाई तक विकल्प परिवर्तन कर सकते है। किन्तु ऐसे कर्मचारी जो 58 वर्ष की आयु पर सेवानिवृत्ति का विकल्प देते हैं, को सेवा निवृत्ति के पूर्व तक विकल्प परिवर्तन की सुविधा अनुमन्य होगी। यह व्यवस्था इस शासनादेश के जारी होने की तिथि से लागू होगी।"

In 2011 pursuant to an amendment to Rule 29 of the Teachers Rules, the age of retirement of teachers in basic education schools came to be increased to 62 years. In light of the aforesaid on 04 February 2004 the State issued a Government Order providing that all facilities and benefits which could be claimed by employees upon submission of an option to retire at 58 years would now be available upon an option being exercised to retire at the age of 60 years. That Government Order made the following provisions: -

"अतः श्री राज्यपाल महोदय तात्कालिक प्रभाव से परिषदीय प्राथमिक विद्यालय, परिषदीय उच्च प्राथमिक विद्यालय तथा सहायता प्राप्त उच्च प्राथमिक विद्यालयों में शासन द्वारा सृजित पदों पर नियमानुसार कार्यरत अध्यापकों की वर्तमान अधिवर्षता आयु को 60 वर्ष से बढ़ाकर 62 वर्ष किये जाने की सहर्ष स्वीकृति प्रदान करते हैं। फलस्वरुप 58 वर्ष की अधिवर्षता आयु पर मिलने वाले सेवानिवृत्तिक लाभ अब 60 वर्ष की अधिवर्षता आयु पर तथा 60 वर्ष की अधिवर्षता आयु पर मिलने वाले सेवा निवृत्तिक लाभ 62 वर्ष की अधिवर्षता आयु पर अनुमन्य होंगे।

श्री राज्यपाल महोदय यह भी आदेश प्रदान करते हैं कि जो शिक्षक जुलाई 2003 के पश्चात अधिवर्षता आयु पूर्ण कर सत्रान्त लाभ पर चल रहे हैं उन्हे भी अधिवर्षता आयु वृद्धि संबंधी लाभ प्रदान किया जायेगा।

इस सम्बन्ध में पूर्व में निर्गत समस्त शासनादेश उक्त सीमा तक संशोधित समझे जायेंगे तथा उनकी (अपठनीय) शर्ते यथावत रहेंगी।"

By an Office Order of 16 September 2009, the maximum limit of gratuity was increased to Rs. Ten Lakhs. By another Office Order of 23 December 2011, taking note of the recommendations of the Pay Commission Report of 2008, the respondents introduced the following measures in respect of pension and gratuity:-

"वेतन समिति, उत्तर प्रदेश, 2008 की संस्तुतियों को स्वीकार किये जाने के फलस्वरुप बेसिक शिक्षा परिषद द्वारा संचालित विद्यालयों में कार्यरत शिक्षकों/कर्मचारियों (दिनांक 01-1-2006 अथवा उसके उपरान्त सेवानिवृत्त) के पेंशन एवं राशिकरण की दरों का पुनरीक्षण किये जाने से संबंधित शासन के कार्यालय ज्ञाप संख्या-1754/79-5-2009-2/09, दिनांक 16-9-2009 के प्रस्तरों में संशोधन/व्यवस्था विषयक शासन के कार्यालय ज्ञाप संख्या-2768/79-5-2010-2/09, दिनांक 28-2-2011 के प्रस्तर-1(1) में वित्त विभाग की सहमति से निम्नानुसार व्यवस्था की गयी थी:-

"कार्यालय ज्ञाप संख्या-1754, दिनांक 16-9-2009 के प्रस्तर-4(2) एवं 4(4) के संबंध में यह व्यवस्था उन शिक्षकों/शिक्षणेत्तर कर्मचारियों पर भी लागू होगी, जो दिनांक 01-1-2006 तथा 15-9-2009 के मध्य 33 वर्ष की अर्हकारी सेवा पूर्ण करके सेवानिवृत्त होंगे, जो शिक्षक/शिक्षणेत्तर कर्मचारी दिनांक 01-1-2006 से दिनांक 15-9-2009 के मध्य सेवानिवृत्त हुए हैं, परन्तु उनकी अर्हकारी सेवा 33 वर्ष की पूर्ण नहीं होती है उन्हे पेंशन की पूर्व नियमों के अधीन, उनकी सेवाअवधि के आधार पर अनुपातिक दर से अनुमन्य होगी।"

2. वित्त (सामान्य) अनुभाग-3 के शासनादेश संख्या-सा-3-1622/दस-2010-308/97, दिनांक 10-11-2010 में प्रदत्त आदेश द्वारा राजकीय सेवानिवृत्त कर्मियों के लिये दिनांक 01-1-2006 को अथवा उसके उपरान्त सेवानिवृत्त/मृत कर्मियों को 20 वर्ष की सेवा पर पूर्ण पेंशन का लाभ दिये जाने की व्यवस्था दिनांक 08-12-2008 के स्थान पर दिनांक 01-1-2006 से प्रभावी कर दी गयी है। अतः एतद्द्वारा बेसिक शिक्षा परिषद द्वारा संचालित विद्यालयों में कार्यरत शिक्षकों/शिक्षणेत्तर कर्मचारियों को 20 वर्ष की सेवा पर पूर्ण पेंशन का लाभ दिये जाने की व्यवस्था शासनादेश निर्गत होने की तिथि से प्रभावी होने के स्थान पर दिनांक 01-1-2006 से प्रभावी की जाती है।

3. 60 वर्ष के उपरान्त सेवानिवृत्ति का विकल्प दिये जाने पर सेवानिवृत्ति/मृत्यु की दशा में ग्रेच्यूटी अनुमन्य होगी।"

On 23 August 2017 the State Government taking into consideration the recommendations made by the Pay Commission of 2016 enhanced the maximum gratuity payable to Rs. Twenty Lakhs.

The learned Chief Standing Counsel has submitted that in accordance with the provisions made in the 1964 and 1981 Rules read with the various Government and Office Orders issued from time to time, it was incumbent upon all teachers to submit an option to receive gratuity within the time frame stipulated therein. According to the learned Chief Standing Counsel a failure on the part of the teachers to timely submit their options must necessarily be held as depriving them of their right to receive gratuity. It was his submission that the decision in Usha Rani did not take notice of the aforesaid requirement and proceeded on the premise that an option was liable to be exercised right up to the time of a teacher attaining the age of superannuation. Sri Maurya learned Chief Standing Counsel placing reliance upon the judgment rendered by a Division Bench of the Court in Prakash Chandra Sharma (Since deceased) through L.R. (Wife) v. Dy. Director of Education Bareilly Region, Bareilly And Others9 submitted that an option must mandatorily be submitted in accordance with the provisions made in the relevant rules and in the absence thereof a right to receive gratuity is lost. He further contended that an option once submitted and duly taken on record by the State attains finality and could not have been modified or changed. Sri Maurya placed reliance upon paragraph-25 of that decision which is reproduced hereunder: -

"25. During the course of argument learned counsel relying on Rule of 1965 giving benefit of 'Tiple Benefit Scheme' notified by G.O. Of 1965 argued that in the matter of pension Regional Deputy Director is the Competent Authority, and therefore, option exercised by a teacher for getting death-cum-retirement gratuity is required to accepted by the Regional Deputy Director of Education to attain finality. We are not inclined to accept this contention, for the reasons that the benefit of death-cum-retirement gratuity was for the first time accepted by the State Government by G.O. dated 10.8.1978 and consequently, a rule (Niyamavali of 1981) was framed and notified by G.O. dated 29.8.1981 prescribing the manner and procedure to exercise the option An official act is to be done in the manner and procedure prescribed in the Rule framed in that regard and not otherwise. Therefore, we are of the view that for claiming death-cum-retirement gratuity the option is to be exercised and accepted in the manner as laid down in the Niyamavali of 1981 notwithstanding Rule 1965 otherwise the entire Scheme would become unworkable."

Learned Chief Standing Counsel then pressed in aid the decision of the Division Bench in State of U.P. And Others v. Shashthi Dutt Shastri And Others10 and more particularly upon paragraph-19 of that decision which reads thus:-

"19. It is also to be noted that in the present cases the petitioners had already exercised their option to forgo the gratuity and continued in the service till the age of 60 years and as such they cannot turn around and claim that they be provided gratuity at par with the teachers working in Government colleges."

Learned Chief Standing Counsel lastly invited the attention of the Court to the judgment of a learned Judge in Prakash Chandra Sharma v. Dy. Director of Education Bareilly Region, Bareilly11 where the following conclusions came to be recorded:-

"19. The conclusions emerging from the above discussion may be summed up as below:

(i) The option to retire at the age of 58 years exercised by a teacher becomes final and irrevocable after it is counter-signed by the competent Authority referred to in paragraph 16 of the Niyamawali and copies of the same are endorsed to the Manager of the Institution for being affixed in the Service book and the Controlling Authority namely, the Regional Dy. Director of Education for record as comprehend by Rule 16 of the Niyamawali. The question of withdrawal of the option does not arise thereafter.

(ii) Option to retire at the age of 58 years is, in effect, an option fur death-cum-retirement gratuity as per Government Order, dated 10-8-1978 read with G. O., dated 28-8-1981. The exercise of option and its acceptance/authentication/confirmation, is governed by the G. O. dated 10-8-1978 read with Niyamawali issued vide Government Order, dated 28-8-1981. The Government Orders dated 4-11-1991 read with G. O. dated 6-10-90 do not alter the legal position comprehended by the G.Os. aforesaid. At the most they confer a right in favour of those teachers, who had not been able to opt for gratuity by giving their options to retire at the age of 58 years, to give options for the same within the period stipulated in the G. O. , dated 4-11-1991. It does not confer any right in favour of a teacher who had already opted for retirement at the age of 58 years and whose option has been countersigned/ accepted by the competent Authority, withdraw the same and opt to retire at the statutorily prescribed age of 60 years."

Drawing the attention of the Court to the Government Order of 23 November 1994, learned Chief Standing Counsel contended that since that drew a parallel between teachers in primary educational institutions and those working in secondary institutions and placed them at par for the purposes of payment of gratuity subject to them submitting an option to retire at the age of 58 years, the requirements placed by the 1981 Rules would ipso facto apply to the case of the present petitioners also. The submission in essence was that in the absence of an option to retire at the age of 58 or 60 years being submitted, the right to receive gratuity would stand forfeited. It is in the aforesaid backdrop that the Court now proceeds to evaluate the correctness of the contention that Usha Rani is liable to be reconsidered.

It may at this preliminary stage be noted that the decisions rendered by the learned Judge and the Division Bench in Prakash Chandra Sharma do not deal with the question which falls for determination in this batch. Those two decisions were essentially dealing with the question whether an option once submitted and accepted was liable to be treated as sacrosanct. Answering the same the Court in Prakash Chandra Sharma held that an option once submitted and accepted in accordance with the procedure prescribed and prevalent could not be modified. The aforesaid principle was reiterated in Shashthi Dutt Shastri. However, as a reading of the principal question framed by the Court would show, the issue here is whether a right to receive gratuity can be said to be lost solely on account of a failure on the part of the teacher to have submitted an option prior to his death and attaining the age of retirement.

At the very outset the Court deems it apposite to underline some significant distinguishing features between the 1964 and the 1981 Rules. Firstly, the 1964 Rules did not contemplate an option to receive gratuity being submitted at all. As is evident from a reading of Rule 5, gratuity became payable immediately upon a teacher passing away while in service. The only additional fetter which stood imposed was of the teacher having rendered three years of continuous service prior to his demise. The Note to that Rule specifically mandated that gratuity would not be payable where the death occurred after the retirement of the teacher. The requirement of an option came to be introduced for the first time by virtue of the Government Order of 8 March 1978 which extended pensionary benefits to teachers of primary educational institutions at par with their counterparts in government colleges. An option from these teachers was liable to be obtained since at the relevant time they were also beneficiaries of the provident fund which came to be created in terms of the 1975 Rules noticed above. The extension of the cutoff date for submission of options as contemplated under the aforementioned Government Order must consequently be understood in the aforesaid and limited context. Options for receipt of gratuity are fundamentally traceable to the Government Order of 23 November 1994. It was this executive direction which for the first time introduced the requirement of an option being submitted. The scheme of this Government Order must necessarily be evaluated bearing in mind the fact that by this time the age of retirement had been extended from 58 to 60 years. It was in the aforesaid backdrop that teachers were called upon to opt either to receive gratuity and exit service at the age of 58 years or continue till attaining the age of 60 years. The said Government Order was then followed up by the Order of 10 June 2002 which provided for options being submitted one year prior to the teacher reaching the age of superannuation and in any case by the 1st of July of the academic year in which the teacher was to retire. While this Government Order principally dealt with the subject of change of options that may have been submitted in terms of the Order of 23 November 1994, the respondents have unambiguously conceded and submitted that the timelines as envisaged under this Order was uniformly and consistently followed with respect to all teachers who may have come to be engaged post 1994 and thereafter. Regard must be had to the fact that the Order of 23 November 1994 which required options being submitted within 90 days of its issuance would necessarily have applied and stand restricted to those teachers who were already in employment on the date of its issuance. The only subsequent Government Order of import and having a material bearing on the question of submission of options was that of 4 February 2004. This Order essentially took into consideration the fact that the age of retirement had come to be increased to 62 and therefore the corresponding requirement of options being invited from teacher to either exit service at 60 years and receive gratuity or continue in service till the age of 62 years. The aforesaid order clearly recited that all previous orders issued on the subject were to be deemed to have been amended only to the aforesaid and limited extent.

From the aforesaid recordal of facts it is evident that insofar as primary educational institutions were concerned, no statutory provision commanded the submission of options in order to be entitled to receive gratuity. The concept of submission of options came to be introduced by virtue of the Government Order of 23 November 1994 and those which came to be subsequently issued and have been noticed above. The Court also takes cognizance of the statement of the learned Chief Standing Counsel who stated that the provisions of the Government Order of 10 June 2002 though ostensibly made in the context of change of options were what was consistently followed by the Board in respect of teachers who came to enter service post 1994 and is adhered to even today.

As an ancillary aspect connected with the above, it may be noted that Rule 13 of the 1964 Rules dealing with the issue of nomination also made provisions for a contingency where a teacher had failed to make a nomination prior to his death. Rule 13 dealing with that eventuality provided that in the event of no nomination having been made it would be the Director of Education who was designated to be the final authority to adjudge who would be entitled to the amount of gratuity. That award as made by the Director was to be binding on all parties. The aforesaid provisions made in Rule 13 are liable to be read in conjunction with Rule 6 which provided that a teacher covered by the 1964 Rules would be obliged to make a nomination upon completion of three years of continuous service indicating the names of the members of his family who would have the right to receive gratuity upon his death. These provisions also indicate that a right of a family member to receive gratuity consequent to the death of a teacher covered by the 1964 Rules was not completely effaced or lost.

However, the position of teachers working in Higher Secondary institutions and governed by the provisions of the 1971 Act came to be drastically altered upon the promulgation of the 1981 Rules. This the Court observes since Rule 3 of the 1964 Rules originally covered even those teachers who were working in Higher Secondary Schools and Degree colleges. Upon the promulgation of the 1981 Rules, teachers working in those categories of institutions came to be exorcised from the ambit of the 1964 Rules. Rule 4 of the 1981 Rules acts and operates in stark contrast to the provisions made in the 1964 Rules. In contrast to the aforesaid Rules, Rule 3 of the 1981 Rules postulates that those who wish to retire at the age of 58 years would have to submit an option in that regard within six months of the publication of those Rules. It further prescribed that an option once exercised would be deemed to be final. Rule 4 of the 1981 Rules states that teachers who come to be appointed after the publication of those Rules and fail to furnish an option indicating that they desire to retire at the age of 58 years within 2 years of being confirmed in service would not be covered by those Rules. Rule 11 then proceeded to amplify the conditions subject to which gratuity would be payable. One of the primary conditions imposed was the submission of an option to retire at 58 years. The language of Rule 4 seems to indicate that the right to receive gratuity was directly dependent upon the teacher exercising a choice to retire at the age of 58 years and a failure to submit that choice within the time frame stipulated was to result in the 1981 Rules themselves ceasing to apply to such a teacher. The Government Order of 17 February 1999 diluted the rigour of this requirement by providing that an option to retire at the age of 58 years may be submitted a year before attaining the age of superannuation and latest by the 1st of July of the academic year in which the date of retirement was to fall.

However, the distinguishing feature of the scheme applicable to teachers of primary educational institutions was that a failure to submit an option was never considered as a fait accompli. As was noticed above, the first Government Order of 08 March 1978 required all options to be submitted by 30 June 1978. That date then came to be extended up to 31 December 1981. However, and for obvious reasons the aforesaid two Government Orders could have only applied to those teachers who were already in the employment of the respondents. By the subsequent Government Order of 03 December 1991, the respondents required all teachers to exercise an option to receive pensionary benefits within 90 days of the issuance of that Order. The prescription of a 90 days period for submission of options was reiterated in the Government Order of 23 November 1994. However, the string of orders did not deal with the case of those teachers who were and would have come to be engaged by the respondents after their promulgation. Though the order of 10 June 2002 on its plain reading essentially dealt with the situation of where a teacher desired to change the option which had been submitted, it was fairly conceded by the learned Chief Standing Counsel that the stipulations made therein, namely, of options being submitted one year prior to the age of superannuation being reached and in any case by 01 July of the academic year in which the age of retirement was falling was uniformly followed and implemented in respect of all teachers who came to be engaged and employed by the respondents from time to time and post the issuance of the Government Orders of 23 November 1994. On a specific query being put, learned Chief Standing Counsel submitted that this practice of permitting the submission of options prior to attaining the age of superannuation and in accordance with the timelines as prescribed in the Government Order of 10 June 2002 has been consistently followed in the department. Regard must also be had to similar provisions which were made in the Government Order of 17 February 1999 which dealt with the case of teachers employed in government aided and privately managed Senior Secondary institutions. While even that Government Order principally dealt with an issue of change of option and provided that a modification may be made prior to a teacher attaining the age of superannuation, the practice followed remained the same namely of options submitted even at the first instance being permitted to be filed before the respondents one year prior to the teacher attaining the age of superannuation and in any case by the first of July of the academic year in which the date of superannuation were to fall. More importantly neither the 1963 Rules nor the various Government Orders issued in connection with the right of teachers working in primary educational institutions administered by the Board to claim gratuity provided for the same being lost forever or being forfeited consequent to a failure to submit an option. In any case they did not introduce or prescribe a corresponding connection between entry into service and the submission of an option. In fact, and as was conceded on behalf of the State, teachers had been conferred the right to exercise that option up to one year prior to reaching the age of retirement. The only additional stipulation that was placed was of that option being submitted before 1 July of the academic year in which the teacher was to retire. The absence of a negative stipulation and a prescription specifying the adverse consequences of inaction clearly operates in favour of teachers and the petitioners here. The Court also bears in mind the undisputed position on facts which has emerged of teachers being permitted to submit their options prior to attaining the age of superannuation and latest by 1st of July of the academic year in which they were to attain the age of retirement. Once that is conceded to be the accepted procedure consistently followed, the Court fails to find any justification to hold teachers to be under an obligation to submit an option immediately upon entry into service.

The Court also finds itself unable to accept the contention of the respondents that the Government Order of 23 November 1994 having conferred parity upon teachers of primary educational institutions and their counterparts in secondary medium schools must be read as attracting the 1981 Rules. Undisputedly the 1981 Rules have never been adopted by or extended in their application by any order statutory or otherwise to teachers in primary educational institutions governed by the Board. Those Rules were made in the context and backdrop of the 1971 Act which admittedly has no application to this category of teachers. The Court thus finds itself unable to sustain the submission that the 1981 Rules would apply to these teachers merely on the basis of the Order of 23 November 1994. The Court also notes that the said order itself does not either explicitly or implicitly extend the application of the 1981 Rules to teachers working in institutions governed by the Board. The contention as advanced also does not flow impliedly from a reading of that Government Order. The application of Rules cannot be inferred by way of an interpretational sidewind. The expression "at par with" as employed in that Government Order does not lend strength to the contention as urged either especially when a careful and holistic reading of that Order establishes that the aforesaid expression was used only to underline the fact that teachers of aided secondary educational institutions stood at par with other employees of the State Government for the purposes of gratuity. The submissions advanced on the aforesaid lines thus stands negatived.

It is in the aforesaid background that the Court now proceeds to consider whether the petitioners here can be denied the benefit of gratuity. Undisputedly the teachers and employees in the batch of these writ petitions died prior to attaining the age of superannuation. As per the stand and practice of the State consistently followed, they had a right to exercise an option up to one year prior to their retirement and by the first of July of the academic year in which the date of retirement was being reached. It is in the aforesaid light that the decision rendered in Usha Rani took the view that death being an unforeseen circumstance and an event which is clearly unpredictable could not have resulted in family members of those teachers being denuded of the right to claim gratuity. The submission which came to be accepted was that the respondents could not have presumed that a teacher had decided that he would continue upto 60 or 62 years. Indubitably death is a circumstance which is neither predictable nor is it an occurrence which can possibly be foreseen or anticipated.

Viewed in that light it would be wholly erroneous and irrational to hold that a teacher was liable to submit an option prior to his demise. The submission of an option to receive gratuity cannot legally be recognised as being attached to a circumstance which by its very inherent character is unforeseeable and incapable of being prophesized. Lastly, as was rightly held in Usha Rani and the various decisions noticed in that judgment, it would be wholly impermissible for the respondents to assume either that the teacher wished to continue beyond the age of 60 or 62 years or that he wished to forego gratuity merely because an option in that respect could not be submitted prior to their unexpected demise. Teachers while serving under the respondents would be presumed to be aware of the practice and requirement of submitting the requisite option one year prior to attaining the age of retirement coupled with the additional burden of ensuring that the option was submitted not later than the 1st of July of the academic year in which the teacher was to retire. If that was the recognised methodology consistently followed by the respondents, it would be wholly incongruous to recognise a responsibility placed upon teachers to submit that option prior to their untimely demise. On a more fundamental plane it must necessarily be stated that the State has failed to place for the consideration of the Court any prescription, statutory or otherwise, which may have drawn an inviolable line in time which when crossed was envisaged to denude a teacher of his right to claim gratuity.

It may only be observed that the State would have been justified in refusing a claim for gratuity in case a teacher had continued in service beyond the stipulated age of retirement and thereafter died while in service. For instance, in case a teacher has continued beyond the age of 58 or 60 years without exercising the requisite option, he would be deemed to have taken and derived benefit of the extended age of retirement. While serving under the respondents in that extended tenure the teacher may have been presumed to have decided to continue in service till the age of 60 or 62 years. However, in a case where death occurs prior to the teacher attaining the age of 58 or 60 years cannot reasonably merit an assumption being made that such a teacher wanted to continue up to the extended and increased age of retirement.

Viewed in light of the above, it is manifest that the decision in Usha Rani appears to have rightly taken the position that gratuity cannot be denied in a situation where a teacher dies prior to reaching the age of retirement and the death having occurred a year before the age of retirement was being reached. The various Government Orders which have been referred to by the respondents far from casting a shadow of doubt on the correctness of the judgment in Usha Rani buttress and support the conclusions recorded therein. For all the aforesaid reasons, the stand of the respondents that the petitioners here would not be entitled to gratuity consequent to a failure on the part of the deceased teacher having failed to exercise an option would not sustain.

The writ petitions are consequently allowed. The respondents are hereby directed to evaluate the claim of the petitioners for release of gratuity in light of the conclusions recorded hereinabove. The exercise of consideration shall be concluded with expedition and a final decision communicated to the petitioners within a period of 3 months from the date of presentation of a duly authenticated of this judgment before the Basic Education Officer concerned.

Order Date :- 15.9.2021

Vivek Kr./Faraz

(Yashwant Varma, J.)