# (2024) 10 ILRA 865

- **Citation:** (2024) 10 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-01
- **Case number:** Writ-A No. 5724 of 2024
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2024-10-ilra-865-51142
- **Pages:** 13

## Headnote

A. Service Law - Gratuity - Present
petition answers two questions: Whether
the petitioners would be covered under
definition of the term 'employee' u/s 2(e)
of the Act, 1972 and would now be
entitled for gratuity?

A perusal of the amending Act (Section 2(e))
will make it evident that teachers as a class
have been brought under the definition of
'employee' by means of the Amending Act and
would form a single class irrespective of
whether they belong to Primary, Secondary or
Degree College etc. (Para 30)

Since the amendment incorporated in the Act of
1972 has been notified w.e.f. 03.04.1997, it has
been made retrospective in nature and would
cover all such teachers who are covered by the
Amending Act of 2009. (Para 31)

B. Whether, even if covered under the
aforesaid definition, they are liable to be
excluded in terms of option already
availed of u/GO dated 30.03.1983 upon
applicability
of
principles
of
acquiescence/estoppels?

Principles of acquiescence and estoppels
w.r.t. exercise of options by teachers
cannot prevail over statutory conditions.
(Para 43)

In view of the statutory provisions of the Act,
1972, particularly Ss. 5 and 14 thereof, the Act
would prevail over the GO dated 30.03.1983.
The aspect of option would also lose any
relevance since principles of acquiescence and
estoppels do not apply against statute. (Para 40,
41)

GOs dated 30.03.1983 and 04.02.2004 are
hereby quashed to the extent of denial of
866 INDIAN LAW REPORTS ALLAHABAD SERIES
gratuity
benefits
to
such
Teachers
who
exercised their option to continue in service for
the extended period. Hon'ble Court has directed
to ensure payment of gratuity to the petitioners
along with interest @6% per annum on such
arrears w.e.f. the date of superannuation till the
date of actual payment. (Para 46, 47)

Writ petition allowed. (E-4)

Precedent followed:

## Text

_Characters 0–39,972 of 41,719. This is a partial read: ask again with offset=39972 for what follows._

10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
865
17. Let the applicant- Maya
Tiwari involved in the aforementioned
crime be released on bail, on her furnishing
a personal bond and two sureties each in
the like amount, to the satisfaction of the
court
concerned,
with
the
following
conditions:-

 i. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/pressurizing
the
witnesses,
during the investigation or trial.

 ii. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

 iii.
The
applicant
shall
not
indulge
in
any
criminal
activity
or
commission of any crime after being
released on bail.

18. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

19. Identity, status and residence
proof of the applicant and sureties be
verified by the court concerned before the
bonds are accepted.
----------
(2024) 10 ILRA 865
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 5724 of 2024
Connected with other cases

University College Ret. Teachers Welfare
Assc. Lko. Thru Its President Dr. S.S.
Chauhan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dwijendra Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Gratuity - Present
petition answers two questions: Whether
the petitioners would be covered under
definition of the term 'employee' u/s 2(e)
of the Act, 1972 and would now be
entitled for gratuity?

A perusal of the amending Act (Section 2(e))
will make it evident that teachers as a class
have been brought under the definition of
'employee' by means of the Amending Act and
would form a single class irrespective of
whether they belong to Primary, Secondary or
Degree College etc. (Para 30)

Since the amendment incorporated in the Act of
1972 has been notified w.e.f. 03.04.1997, it has
been made retrospective in nature and would
cover all such teachers who are covered by the
Amending Act of 2009. (Para 31)

B. Whether, even if covered under the
aforesaid definition, they are liable to be
excluded in terms of option already
availed of u/GO dated 30.03.1983 upon
applicability
of
principles
of
acquiescence/estoppels?

Principles of acquiescence and estoppels
w.r.t. exercise of options by teachers
cannot prevail over statutory conditions.
(Para 43)

In view of the statutory provisions of the Act,
1972, particularly Ss. 5 and 14 thereof, the Act
would prevail over the GO dated 30.03.1983.
The aspect of option would also lose any
relevance since principles of acquiescence and
estoppels do not apply against statute. (Para 40,
41)

GOs dated 30.03.1983 and 04.02.2004 are
hereby quashed to the extent of denial of
866 INDIAN LAW REPORTS ALLAHABAD SERIES
gratuity
benefits
to
such
Teachers
who
exercised their option to continue in service for
the extended period. Hon'ble Court has directed
to ensure payment of gratuity to the petitioners
along with interest @6% per annum on such
arrears w.e.f. the date of superannuation till the
date of actual payment. (Para 46, 47)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of U.P. Vs University Colleges Pensioners'
Association, (1994) 2 SCC 729 (Para 5)

2.
Ahmedabad
Private
Primary
Teachers'
Association Vs Administrative Officer & ors.,
(2004) 1 SCC 755 (Para 6)

3. Avdhesh Kumar Singh & ors. Vs St. of U.P. &
ors., Special Leave Petition (Civil) No. 23788 of
2014 (Para 9)

4. Independent Schools' Federation of India Vs
U.O.I. & anr., 2022 SCC OnLine SC 1113 (Para
22)

5. Birla Institute of Technology Vs St. of
Jharkhand & ors., Civil Appeal No. 2530 of 2012
(Para 24)

6. St. of U.P. Vs U.P. Rajya Khanij Vikas Nigam
Sangharsh Samiti & ors., (2008) 12 SCC 675
(Para 41)

7. G.B. Pant University Vs Appellate Authority
& ors., Writ Petition No. 395 of 2017 (M/S)
upheld by the Hon'ble Supreme Court in
Special Leave to Appeal (C) No(s). 1803 of
2018 (Para 42)

Present petitions seek a direction to
opposite parties for payment of gratuity to
the
Teachers/Members
of
Petitioner's
Association, who were denied gratuity at
the time of their superannuation. Interest
on the same has also been sought. In
Writ-A No. 2001072 of 2011, a further
prayer for quashing GOs dated 30.03.1983
and 04.02.2004 as being repugnant to the
provisions of Payment of Gratuity Act,
1972 has also been sought.
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Sandeep Dixit, learned
Senior Counsel assisted by Mr. Dwijendra
Mishra alongwith Mr. Amol Dixit, Mr.
Gibran Akhtar Khan, Varadraj Shreedutt
Ojha and other learned counsel for
petitioners in other connected matters,
learned State Counsel for opposite parties.

2. Petitions have been filed seeking a
direction to opposite parties for payment of
gratuity to the Teachers/ Members of
Petitioner's Association, who were denied
gratuity at the time of their superannuation
in terms of then existing judgment and
order passed by the Hon'ble Supreme Court
on the aforesaid aspect. Interest on the
same has also been sought.

3. In writ petition Service Bench
No.1072 of 2011 i.e. Writ-A No.2001072
of 2011, a further prayer for quashing
Government Orders dated 30.03.1983 and
04.02.2004 as being repugnant to the
provisions of the Payment of Gratuity Act,
1972 [hereinafter referred to as Act, 1972]
has also been sought.

4. It has been submitted that earlier, in
terms of the Government Order dated
30.03.1983, teachers employed in various
Colleges affiliated to Universities were
segregated into two classes with one
belonging to those who superannuated at
the age of 58 years and those who opted to
continue in service up till the age of 60
years. It is submitted that in case of those
teachers who opted to retire at the age of 58
years, provisions of the Act, 1972 were
made applicable, which was denied to those
who opted to continue in service up till the
age of 60 years, ostensibly for the reason
that in the latter case,two years additional
service benefits were opted for.
10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
867

5. It is submitted that the aforesaid
aspect was considered by the Hon'ble
Supreme Court in the case of State of U.P.
versus
U.P.
University
Colleges
Pensioners' Association, (1994) 2 SCC
729 in which the Government Order dated
24.08.1980
was
under
consideration,
whereby a new scheme of pension and
provident fund for employees of aided
degree colleges of the State was notified.
The segregation so made was upheld in the
said judgment.

6. It is submitted that the aforesaid
aspect was thereafter reconsidered by the
Hon'ble Supreme Court in the case of
Ahmedabad Private Primary Teachers'
Association versus Administrative Officer
and others, (2004) 1 SCC 755, whereunder
judgment of the High Court of Gujarat was
under consideration that teachers as a class
do not fall within the definition of
'employee' as contained in Section 2(e) of
the Act, 1972. In the aforesaid judgment,
while it was held that teachers would not
come within the definition of the term
'employee', it was also indicated that the
said
conclusion
should
not
be
misunderstood
that
teachers
although
engaged in the noble profession should not
be given any gratuity benefit. It was left
open for the wisdom of legislature to take
cognizance of such a situation and to think
of a separate legislation for them in this
regard.

7. It is submitted that thereafter, in
terms of aforesaid judgment, Parliament
amended the definition of 'employee' under
Section 2(e) of the Act, 1972 by amending
it vide Payment of Gratuity (Amendment)
Act, 2009 (No.47 of 2009) [hereinafter
referred to as Amending Act No.47 of
2009]
notified
on
31.12.2009
with
retrospective effect from 03.04.1997. It is
submitted that the statement of objects and
reasons clearly indicated that the aforesaid
amendment was being incorporated to give
effect to anxiety expressed by the Hon'ble
Supreme Court in the case of Ahmedabad
Private Primary Teachers' Association
(supra).

8. It is therefore submitted that
now with the advent of amendment in the
Act, 1972, teachers have also been included
under the definition of 'employee' with
retrospective effect from 03.04.1997 and
are, therefore, entitled for such benefit
under the Act, 1972.

9. Learned counsel has also placed
reliance on judgment rendered in the case
of Avdhesh Kumar Singh and others
versus State of U.P. and others, Special
Leave Petition (Civil) No.23788 of 2014 in
which
vide
order
dated
30.04.2024,
directions with regard to payment of
gratuity and interest have been issued.

10. Learned State Counsel has
refuted submissions advanced by learned
counsel for petitioners with the submission
that admittedly, the Government Order
dated 30.03.1983 is applicable upon
petitioners, whereunder a distinction had
clearly been made for payment of gratuity
to
those
teachers
who
opted
to
superannuate at the age of 58 years with
such benefit not being made applicable
upon
those
teachers
who
opted
to
superannuate at the age of 60 years. It is
submitted that such a distinction was a
reasonable classification in view of the fact
that in the latter case, two years' extended
service with salary was available.

11. It is therefore submitted that
once petitioners had already opted to
continue with a further two years of
868 INDIAN LAW REPORTS ALLAHABAD SERIES
service, grant of such benefit to them
would be arbitrariness with regard to those
who opted to superannuate at the age of 58
years.

12. Learned counsel has further
submitted
that
the
petitioners,
even
otherwise, do not deserve any consideration
since they come within the category of
fence-sitters. It is also submitted that the
amendment made in the Act, 1972 would
be inapplicable upon petitioners since it
was incorporated in terms of judgment
rendered by the Hon'ble Supreme Court
which was not applicable upon petitioners
since the aforesaid petition before the
Hon'ble Supreme Court was filed by
teachers of primary schools and not by
those employed in degree colleges.

13. Learned counsel has further
submitted that the amendment incorporated
in the Act, 1972, even otherwise, was
applicable only in those cases where
teachers were not covered by any provision
for gratuity while in the present case, such
a
facility
was
already
available
to
petitioners in terms of Government Order
dated
30.03.1983
and
petitioners
specifically opted not to take advantage of
the same.

14. In continuation of aforesaid
submissions, it is further submitted that
once option has been exercised by
petitioners in terms of the Government
Order dated 30.03.1983 for continuation in
service for a further period of 2 years, they
would now be barred from the said benefit
in terms of principles of acquiescence and
estoppel.

15.

Upon
consideration
of
submissions advanced by learned counsel
for parties, the following questions arise for
consideration:-

 Question No. 1-

16. Whether the petitioners would
be covered under definition of the term
'employee' under Section 2(e) of the Act,
1972 and would now be entitled for
gratuity?

Question No. 2-

17. Whether, even if covered
under the aforesaid definition, they are
liable to be excluded in terms of option
already availed of under Government Order
dated 30.03.1983 upon applicability of
principles of acquiescence/ estoppel?

18. The aforesaid questions are
being answered as follows:-

Answer No. 1-

19. With regard to the said
question, it is evident that by Government
Order dated 30.03.1983, provisions of
pension and gratuity were made applicable
upon teachers of Colleges affiliated to
Universities. The said order indicated a
provision for payment of gratuity and
certain other benefits to those teachers
who opted to superannuate at the age of 58
years but the provisions of gratuity were
declined for those teachers who opted to
continue in service for a further two years
uptill the age of 60 years. The said aspect
was considered in the case of (U.P.
University
Colleges
Pensioners'
Association (supra) and exclusion of
payment of gratuity to optees, who
continued in service till the age of 60
years was upheld.
10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
869
20. Subsequently, the aspect of
exclusion of teachers as a class from the
definition of 'employee' as contained in
Section 2(e) of the Act, 1972 was
considered by the Hon'ble Supreme Court
in the case of Ahmedabad Private
Primary Teachers' Association (supra)
but while upholding the aspect of their
exclusion from the aforesaid definition, the
following was held:-

 "26. Our conclusion should not
be misunderstood that teachers although
engaged in a very noble profession of
educating our young generation should not
be given any gratuity benefit. There are
already in several States separate statutes,
rules and regulations granting gratuity
benefits
to
teachers
in
educational
institutions which are more or less
beneficial
than
the
gratuity
benefits
provided under the Act. It is for the
legislature to take cognizance of situation
of such teachers in various establishments
where gratuity benefits are not available
and think of a separate legislation for them
in this regard. That is the subject-matter
solely of the legislature to consider and
decide."

21. Since intention of the Hon'ble
Supreme Court could be garnered in the
aforesaid judgment, the Act, 1972 was
thereafter amended vide Amending Act
No.47 of 2009 to include teachers in the
definition of the term 'employee' in terms
of Section 2(e) thereof. It is noticeable that
the aforesaid amendment was applied
retrospectively w.e.f. 03.04.1997. The
retrospective
applicability
is
directly
referable to the notification issued on
03.04.1997
bringing
educational
institutions in which ten or more persons
were employed, as a class of establishment
to which the Act, 1972 was applicable.
22. The aforesaid amendment to
Section 2(e) of the Act, 1972 was thereafter
challenged before various High Courts and
the dispute was thereafter adjudicated upon
by the Hon'ble Supreme Court in the case
of Independent Schools' Federation of
India versus Union of India and Another,
2022 SCC OnLine SC 1113 and the
amendment was upheld primarily on the
ground that a lacuna in the definition of the
term 'employee' has been rectified so as to
achieve the object and purpose behind
issuance of notification making the Act,
1972
applicable
to
all
educational
institutions. It was also held that marginal
inconvenience in the form of financial
outgo or difficulty is of little weight when
curing of an inadvertent defect is made
retrospectively
in
public
interest
particularly in the light of observations of
the Court in Ahmedabad Private Primary
Teachers'
Association
(supra).
The
relevant portion of the judgment is as
follows:-

 "18. The second ground is again
devoid of any merit and substance. The
legislature, vide the Amendment Act, 2009,
has given retrospective effect to the
amended provision of Section 2(e) and the
newly inserted Section 13A with effect from
3rd April 1997, which is also the date of
the notification issued by the Government
under Section 1(3)(c), making the PAG Act
applicable to the educational institutions
with
ten
or
more
employees.
The
amendment enforces and gives effect to
what was intended by the notification, but
could not be achieved on account of the
technical and legal defect. The lacuna, a
distortion in the language that had the
unwitting effect of leaving out teachers, has
been rectified so as to achieve the object
and purpose behind the issuance of the
notification,
making
the
PAG
Act
870 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable to all educational institutions.
The
argument
of
the
educational
institutions that they have been taken by
surprise is incorrect and unacceptable as
the legislation had cured the inadvertent
defect in a statute, as pointed out by this
Court, through legislative repair. Private
schools, when they claim a vested right
arising from the reason of defect, should
not succeed, for acceptance would be at the
expense of teachers who were denied and
deprived of the intended benefit. Marginal
inconvenience in the form of financial
outgo or difficulty is of little weight, when
curing of an inadvertent defect is made
retrospectively in greater public interest,
which consideration will overrule the
interest of one or some institutions [see
paragraph 69 in Ujagar Prints (II) v.
Union of India, (1989) 3 SCC 488]. We
find little merit in this argument also for
the reason, that the observations of this
Court in Ahmedabad Private Primary
Teachers' Association (supra) in paragraph
26 were sufficient to indicate that a
legislation should intervene to grant the
benefit of gratuity to teachers. The
contention that the private schools were
sure to succeed as to deny the teachers the
benefit
of
the
Notification
No.
S42013/1/95-SS.(II) dated 3rd April 1997, is
questionable and farfetched to be accepted.
The challenge was contested and had
remained pending before the High Courts
and then this Court. The private schools
had relied on some judgments of this Court,
but these judgments have interpreted the
word "employee" under other enactments.
The law is subject to uncertainty ex-ante
when two or more views are possible, but
there may be certainty ex-post litigation in
view of the law of precedents, which
reduces uncertainty.

 23. The provisions of the PAG
Act,
even
post
the
retrospective
amendments, will apply only to those
teachers who were in service as on 3rd
April 1997, and at the time of termination
have rendered service of not less than 5
years. The period of 5 years may be partly
before 3rd April 1997, as the date on which
the person was employed does not
determine the applicability of the PAG Act.
The date of termination of service, in the
form of superannuation, retirement, or
resignation, or death or disablement due to
accident or disease, should be post the
enforcement date, which in the present case
is 3rd April 1997. The entire length of
service, including the service period prior
to 3rd April 1997, is to be counted for the
purpose of computing the entitlement
condition of 5 years of service. This is the
correct effect of the ratio and decision in
Management of Goodyear India Limited
(supra) and the decisions explaining
retroactive effect of a statute. This legal
position would be equally true and correct
when the PAG Act was first enforced with
effect from 16th September 1972, and when
Notification No. S- 42013/1/95-SS.(II)
under Section 1(3)(c) of the PAG Act was
issued and enforced with effect from 3rd
April, 1997. It would be the position in case
of all notifications issued under Section
1(3)(c) of the PAG Act, unless a contrary
intention is expressed, which is not the
situation in the present case and thus need
not be examined."

23. It is thus apparent that the
provisions
of
the
Act,
1972
with
retrospective amendment would apply to
those teachers who were in service as on
03.04.1997 and had rendered service of not
less than five years.
10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
871
24. It appears that subsequently,
the Hon'ble Supreme Court in the case of
Birla Institute of Technology versus State
of Jharkhand and Others, Civil Appeal
No.2530 of 2012 passed an order without
noticing the amendment in Section 2(e) of
the Act, 1972 and therefore, suo motu took
up the appeal and by means of judgment
and order dated 07.03.2019, considered the
aspect of the aforesaid amendment with its
retrospectivity and held that the effect of
amendment made in the Act, 1972 made
the teachers entitled to claim gratuity under
the Act, 1972 from their employer w.e.f.
03.04.1997.

25. It appears that subsequently,
some of the teachers of affiliated Colleges
gave a representation to the Director of
Education,
Higher
Education,
U.P.,
Allahabad regarding payment of gratuity,
which was rejected vide order dated
16.08.2012,
placing
reliance
on
the
Government Order dated 30.03.1983 and
option exercised by such teachers for
superannuation at the age of 62 years. The
said order was challenged before this Court
in Writ Petition No.31 (SB) of 2013, which
was dismissed vide judgment and order
dated 06.02.2014 again reiterating the
exclusion in terms of option exercised by
petitioners therein.

26 . The said judgment was
thereafter
challenged
in
the
Hon'ble
Supreme Court in Special Leave Petition
(Civil) No.23788 of 2014 and judgment
rendered by High Court was set aside with
benefit of gratuity being extended to the
said petitioners alongwith interest.

27. From a consideration of the
aforesaid facts and circumstances, it is thus
evident that subsequent to the Government
Order dated 30.03.1983, the situation
underwent a sea change with amendment
being incorporated in Section 2(e) of the
Act, 1972, whereunder teachers as a class
were brought under definition of the term
'employee".

28. The statement of objects and
reasons of the Amending Act No.47 of
2009
is
relevant
for
purposes
of
adjudication of this dispute and is as
follows:-

 "STATEMENT
OF
OBJECTS
AND REASONS

 The Payment of Gratuity Act,
1972 provides for payment of gratuity to
employees engaged in factories, mines,
oilfields,
plantations,
ports,
railway
companies, shops or other establishment
and for matters connected therewith or
incidental thereto. Clause (c) of subsection
(3) of section 1 of the said Act empowers
the Central Government to apply the
provisions of the said Act by notification in
the
Official
Gazette
to
such
other
establishments or class of establishments in
which
ten
or
more
employees
are
employed, or were employed, on any day
preceding twelve months. Accordingly, the
Central Government had extended the
provisions
of
the
said
Act
to
the
educational institutions employing ten or
more persons by notification of the
Government of India in the Ministry of
Labour and Employment vide number S.O.
1080, dated the 3rd April, 1997.

 2. The Hon'ble Supreme Court in
its judgment in Civil Appeal No. 6369 of
2001, dated the 13th January, 2004, in
Ahmedabad Private Primary Teachers'
Association vs. Administrative Officer and
others [AIR 2004 Supreme Court 1426]
had held that if it was extended to cover in
872 INDIAN LAW REPORTS ALLAHABAD SERIES
the definition of 'employee', all kind of
employees, it could have as well used such
wide language as is contained in clause (f)
of section 2 of the Employees' Provident
Funds and Miscellaneous Provisions Act,
1952 which defines 'employee' to mean any
person who is employed for wages in any
kind of work, manual or otherwise, in or in
connection
with
the
work
of
an
establishment. It had been held that nonuse of such wide language in the definition
of 'employee' under clause (e) of section 2
of the Payment of Gratuity Act, 1972
reinforces the conclusion that teachers are
clearly not covered in the said definition.

 3.
Keeping
in
view
the
observations of the Hon'ble Supreme
Court, it is proposed to widen the definition
of 'employee' under the said Act in order to
extend the benefit of gratuity to the
teachers. Accordingly, the Payment of
Gratuity (Amendment) Bill, 2007 was
introduced in Lok Sabha on the 26th
November, 2007 and same was referred to
the Standing Committee on Labour which
made
certain
recommendations.
After
examining those recommendations, it was
decided to give effect to the amendment
retrospectively with effect from the 3rd
April, 1997, the date on which the
provisions of the said Act were made
applicable to educational institutions.

 4. Accordingly, the Payment of
Gratuity (Amendment) Bill, 2007 was
withdrawn and a new Bill, namely, this
Payment of Gratuity (Amendment) Bill,
2009 having retrospective effect was
introduced in the Lok Sabha on 24th
February,
2009.
However,
due
to
dissolution of the Fourteenth Lok Sabha,
the said Bill lapsed. In view of the above, it
is considered necessary to bring the
present Bill.
 5. The Bill seeks to achieve the
above objectives.

 NEW DELHI;

 The
12th
November,
2009"
MALLIKARJUN KHARGE."

29. The said fact was noticed by
the Hon'ble Supreme Court in the case of
Birla Institute of Technology (supra),
which thereafter held as follows:-

 "28. In the light of the amendment
made in the definition of the word
"employee" as defined in Section 2(e) of the
Act by Amending Act No. 47 of 2009 with
retrospective effect from 03.04.1997, the
benefit of the Payment of Gratuity Act was
also extended to the teachers from
03.04.1997.

 29. In other words, the teachers
were brought within the purview of
"employee" as defined in Section 2(e) of the
Payment of Gratuity Act by Amending Act
No. 47 of 2009 with retrospective effect
from 03.04.1997."

30. In view of aforesaid facts and
circumstances, it is discernible that no
distinction
being
indicated
in
the
amendment to Section 2(e) of the Act,
1972 pertaining to teachers of affiliated
Colleges or Primary and other Schools,
no such distinction as is being advocated
by learned counsel for opposite parties
can be construed. A perusal of the
Amending Act will make it evident that
teachers as a class have been brought
under the definition of 'employee' by
means of the Amending Act and would
form a single class irrespective of
whether
they
belong
to
Primary,
Secondary or Degree Colleges etc.
10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
873
31. It is also noticeable that since
the amendment incorporated in the Act of
1972 has been notified with effect from
03.04.1997, it has been made retrospective
in nature and would cover all such teachers
who
are
covered
by
the
aforesaid
Amending Act of 2009.

32. The submission of learned
State Counsel pertaining to petitioners
being fence-sitters and therefore not liable
to be granted any benefit also does not
behove
any
consideration
since
the
judgment pronounced by Supreme Court
was with intention to provide benefit to
teachers
as
a
class,
whether
they
approached the court or not and therefore in
such
circumstances,
the
aforesaid
judgments would, in the considered opinion
of this Court come within the realm of
judgment in rem and not judgment in
personam as has been held by Supreme
Court in the case of State of Uttar
Pradesh and others versus Arvind
Kumar Srivastava and others (2015) 1
SCC 347 in the following manner:-

 "22. The legal principles which
emerge from the reading of the aforesaid
judgments, cited both by the appellants as
well as the respondents, can be summed up
as under.
 22.1. The normal rule is that
when a particular set of employees is given
relief by the court, all other identically
situated persons need to be treated alike by
extending that benefit. Not doing so would
amount to discrimination and would be
violative of Article 14 of the Constitution of
India. This principle needs to be applied in
service matters more emphatically as the
service jurisprudence evolved by this Court
from time to time postulates that all
similarly situated persons should be treated
similarly. Therefore, the normal rule would
be that merely because other similarly
situated persons did not approach the
Court earlier, they are not to be treated
differently.

 22.2. However, this principle is
subject to well-recognised exceptions in the
form of laches and delays as well as
acquiescence. Those persons who did not
challenge the wrongful action in their cases
and acquiesced into the same and woke up
after long delay only because of the reason
that
their
counterparts
who
had
approached the court earlier in time
succeeded in their efforts, then such
employees cannot claim that the benefit of
the judgment rendered in the case of
similarly situated persons be extended to
them. They would be treated as fencesitters and laches and delays, and/or the
acquiescence, would be a valid ground to
dismiss their claim.

 22.3. However, this exception
may not apply in those cases where the
judgment pronounced by the court was
judgment in rem with intention to give
benefit to all similarly situated persons,
whether they approached the court or not.
With such a pronouncement the obligation
is cast upon the authorities to itself extend
the benefit thereof to all similarly situated
persons. Such a situation can occur when
the subject-matter of the decision touches
upon the policy matters, like scheme of
regularisation and the like (see K.C.
Sharma v. Union of India [K.C. Sharma v.
Union of India, (1997) 6 SCC 721 : 1998
SCC (L&S) 226] ). On the other hand, if
the judgment of the court was in personam
holding that benefit of the said judgment
shall accrue to the parties before the court
and such an intention is stated expressly in
the judgment or it can be impliedly found
out from the tenor and language of the
874 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment, those who want to get the benefit
of the said judgment extended to them shall
have to satisfy that their petition does not
suffer from either laches and delays or
acquiescence."

33. Considering aforesaid facts
and discussions, the question no.1 is
answered in favour of petitioners that they
would be covered in the definition of
'employee' under Section 2(e) of the Act,
1972.

 Answer No.2

34. With regard to aforesaid
question, it is quite evident that at the time
of notification of Government Order dated
30.03.1983, teachers as a class were not
included in the definition of 'employee'
under Section 2(e) of the Act, 1972 and
therefore, they were sought to be brought
within the aforesaid scope for payment of
gratuity with a rider that such provision of
gratuity would be applicable only in case
teachers opted to superannuate at the age of
58 years with such benefit being declined
to those who opted to continue in service
till the age of 60 years.

35. It is admitted that petitioners
were covered under the latter provision
with option being exercised to continue
upto the age of 60 years in service.

36. Once it is admitted that
petitioners had opted to continue in service
upto the age of 60 years, it followed that
they were not covered by any provision for
payment of gratuity.

37. As indicated here-in-above, the
situation underwent a sea change with the
advent of Amending Act No.47 of 2009
whereby the Government Order dated
30.03.1983 lost all significance since
teachers were now covered statutorily
under the Act, 1972 w.e.f. 03.04.1997.

38. It is also worth noticing that
exemption from applicability of the Act,
1972 is contemplated under Section 5 of
the aforesaid Act, particularly in view of
non-obstante Clause under Section 14 of
the aforesaid Act, which clearly states that
the provisions of Act would continue to be
in force irrespective of anything contained
which is inconsistent with any other
provisions. Sections 5 and 14 of the Act,
1972 are as follows:-

 "5. Power to exempt.- [(1)] [
Section 5 renumbered as sub-Section (1)
thereof by Act 26 of 1984, Section 5 (w.e.f.
18.5.1984).] The appropriate Government
may, by notification, and subject to such
conditions as may be specified in the
notification, exempt any establishment,
factory, mine, oilfield, plantation, port,
railway company or shop to which this Act
applies from the operation of the provisions
of this Act if, in the opinion of the
appropriate Government, the employees in
such establishment, factory, mine, oilfield,
plantation, port, railway company or shop
are in receipt of gratuity or pensionary
benefits not less favourable than the
benefits conferred under this Act.

 (2) [Inserted by Act 26 of 1984,
Section
5
(w.e.f.
18.5.1984).]The
appropriate
Government
may,
by
notification and subject to such conditions
as may be specified in the notification,
exempt any employee or class of employees
employed in any establishment, factory,
mine, oilfield, plantation, port, railway
company or shop to which this Act applies
from the operation of the provisions of this
Act, if, in the opinion of the appropriate
10 All. University College Ret. Teachers Welfare Assc. Lko. Thru Its President Dr. S.S. Chauhan
 & Anr. & State of U.P. & Ors.
875
Government, such employee or class of
employees are in receipt of gratuity or
pensionary benefits not less favourable
than the benefits conferred under this Act.]

 (3) [Inserted by Act 22 of 1987,
Section
6
(w.e.f.
1.10.1987).][
A
notification issued under sub-section (1) or
sub-section
(2)
may
be
issued
retrospectively a date not earlier than the
date of commencement of this Act, but no
such notification shall be issued so as to
prejudicially, affect the interests of any
person.]

 14.
Act
to
override
other
enactments, etc. -The provisions of this Act
or any rule made thereunder shall have
effect
notwithstanding
anything
inconsistent therewith contained in any
enactment other than this Act or in any
instrument or contract having effect by
virtue of any enactment other than this
Act."

39. It is not the case of opposite
parties that they have been exempted from
applicability of the Act, 1972 in terms of
Section 5 thereof and therefore, in the
considered opinion of this Court, the
mandatory conditions of Section 14 of the
Act, 1972 would automatically apply. It is
also worth stating that in terms of statutory
provisions under Section 5 read with
Section 14 of the Act, 1972, the provisions
of Government Order dated 30.03.1983
would become redundant since it is a
settled law that provisions of statute would
have
primacy
over
any
executive
instruction such as a Government Order.

40. In view of specific statutory
provisions of the Act, 1972, particularly
Sections 5 and 14 thereof, the Act would
prevail over the Government Order dated
30.03.1983.

41. In the considered opinion of
this Court, the aspect of option therefore
also would lose any relevance since
principles of acquiescence and estoppel do
not apply against statute as has been held
by the Hon'ble Supreme Court in the case
of State of U.P. versus U.P. Rajya Khanij
Vikas Nigam Sangharsh Samiti & others
(2008) 12 SCC 675.

42. The said aspect has also been
considered
by
the
High
Court
of
Uttarakhand in the case of G.B. Pant
University versus Appellate Authority and
Others, Writ Petition No.395 of 2017
(M/S) and was upheld by the Hon'ble
Supreme Court in Special Leave to Appeal
(C) No(s).1803 of 2018 vide judgment and
order dated 18.11.2021 in the following
manner:-

 "Having heard learned counsel
for the petitioner and having perused the
material placed on record, we are at one
with the view taken by the High Court that
mere exercise of option by an employee, to
avail the benefit of extension of age of
retirement to 60 years, could not have
operated
against
his
entitlement
to
gratuity; and exercising of such an option
will not deprive the private respondents to
gratuity unless and until the establishment
i.e.,
the
petitioner-University,
was
exempted in strict compliance of Section 5
of the Payment of Gratuity Act, 1972, after
prior approval of the State Government.
There being no such exemption availed by
the petitioner-University, the High Court
has rightly not interfered with the principal
part of the orders passed by the Controlling
Authority and the Appellate Authority.
876 INDIAN LAW REPORTS ALLAHABAD SERIES
 On the other hand, the High
Court has been rather considerate to the
petitioner in reducing the rate of interest
awarded to the private respondents from
10% to 6% p.a.

 In view of the above, no case for
interference is made out.

 Hence,
these
special
leave
petitions stand dismissed.

 All the pending applications
stand disposed of."

43. Considering aforesaid facts and
circumstances, it is thus evident that
principles of acquiescence and estoppel with
regard to exercise of option by teachers
cannot prevail over statutory conditions.

44. The aforesaid aspects have also
been considered by the Hon'ble Supreme
Court in the case of (A) Nagar Ayukt Nagar
Nigam Kanpur versus Mujib Ullah Khan
and others, (2019) 6 SCC 103 as well as in
the case of (B) Allahabad Bank & another
versus All India Allahabad Bank Retired
Employees Association, (2010) 2 SCC 44.
The relevant portion of the judgments are as
follows:-

 (A) Nagar Ayukt Nagar Nigam
Kanpur versus Mujib Ullah Khan and
others, (2019) 6 SCC 103

 "12. In view of Section 14 of the
Act, the provision in the State Act
contemplating payment of gratuity will be
inapplicable in respect of the employees of
the local bodies.

 14. The entire argument of the
appellant is that the State Act confers
restrictive benefit of gratuity than what is
conferred under the Central Act. Such
argument is not tenable in view of Section
14 of the Act and that liberal payment of
gratuity is in fact in the interest of the
employees. Thus, the gratuity would be
payable under the Act. Such is the view
taken by the Controlling Authority."

 (B) Allahabad Bank & another
versus All India Allahabad Bank Retired
Employees Association, (2010) 2 SCC 44

 "19. Gratuity payable to an
employee on the termination of his
employment after rendering continuous
service for not less than 5 years and on
superannuation
or
retirement
or
resignation, etc. being a statutory right
cannot be taken away except in accordance
with the provisions of the Act whereunder
an exemption from such payment may be
granted
only
by
the
appropriate
Government under Section 5 of the Act
which itself is a conditional power. No
exemption could be granted by any
Government unless it is established that the
employees are in receipt of gratuity or
pension benefits which are more favourable
than the benefits conferred under the Act.

 35. In the present case the real
question that arises for our consideration is
whether the employees having exercised
their option to avail the benefits under the
pension scheme are estopped from claiming
the benefit under the provisions of the Act?

 36. The appellant being an
establishment
is
under
the
statutory
obligation to pay gratuity as provided for
under Section 4 of the Act which is
required to be read along with Section 14
of the Act which says that the provisions of
the Act shall have effect notwithstanding
anything inconsistent therein contained in
10 All. Hari Prasad Pandey Vs. State of U.P. & Ors.
877
any enactment or in any instrument or
contract having effect by virtue of any
enactment other than this Act. The
provisions of the Act prevail over all other
enactments or instruments or contracts so
far as the payment of gratuity is concerned.
The right to receive gratuity under the
provisions of the Act cannot be defeated by
any instrument or contract."

45.

In
view
of
aforesaid
discussion, the question no.2 is also
answered in favour of petitioners.

46. Considering aforesaid answers
to the questions, Government Orders dated
30.03.1983 and 04.02.2004 are hereby
quashed to the extent of denial of gratuity
benefits to such Teachers who exercised
their option to continue in service for the
extended period.

47. Opposite parties are directed to
ensure
payment
of
gratuity
to
the
petitioners alongwith interest @ 6% per
annum on such arrears with effect from the
date of their superannuation till the date of
actual
payment.
Compliance
of
the
aforesaid directions shall be made by the
opposite parties positively within a period
of six months from the date a certified copy
of this order is served upon the concerned
authorities.

48. Resultantly, the petition
succeeds and is allowed.