# Bindra Prasad Patel v. State Of U.P. & Ors

- **Citation:** (2025) 7 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-08
- **Case number:** Special Appeal No. 41 of 2025
- **Bench:** Ashwani Kumar Mishra, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bindra-prasad-patel-v-state-of-u-p-ors-53530
- **Pages:** 10

## Headnote

to get gratuity under Gratuity Act, 1972.
(B) Permissibility of a teacher of basic institution
to be covered within the definition of employee
u/s 2(e) of the Gratuity Act, 1972 so as to
extend the benefit of gratuity to them.
Headnotes
(A) Service Law - Gratuity - Entitlement -
Prayer sought for release of gratuity was
rejected
by
writ
court
-
Validity
challenged - Appeal was opposed on the
ground that the appellant holds a post
under the State Government and since is
governed by scheme for payment of
gratuity, framed by the State as such he
would be excluded from the purview of S.
2(e) and so benefit of gratuity under the
Gratuity Act, 1972 would not be available
to the appellant - It was contended on
behalf of appellant that for excluding a
person from the definition of employee
u/s 2(e), such person, in addition to
holding a post under Central or State
Government, must also be governed by a
scheme for gratuity under any other Act or
Rules - Applicability of Gratuity Act to a
teacher of basic institution felt into
consideration :
Held : A headmaster or assistant teacher
appointed
in
an
educational
institution
established by the Board holds a post under the
State Government - Non specification of Act or
Rules in the exclusion clause contained in
Section 2(e) and the use of expression "any
other act or by any rules" essentially conveys
that such scheme for payment of gratuity must
be backed by requisite force of law - Reference
to scheme for gratuity made under any other
act or by any rules conveys expressions of wide
magnitude. It cannot be restricted only to
scheme for gratuity made under any specific Act
or Rules, per se. Such scheme for gratuity for a
person holding post under State Government
can also be by way of Rules made in exercise of
executive powers of State. This is so as the
power with the State Government to frame
scheme for payment of gratuity by way of
executive instructions would be co-extensive
with the legislative powers of State. (See: Article
162 of the Constitution of India). The argument
of appellant's counsel that scheme for gratuity
framed by the State in respect of teachers of
basic institution since are not under any other
Act or by any specific Rules made under any
Act, therefore, the benefits under Gratuity Act,
1972 would be available to the appellant cannot
be accepted - The benefits available to an
employee under the Gratuity Act, 1972 would
thus not be available to a teacher of a basic
institution. [Paras 24, 27, 28 and 29] (E-1)
Case Law Cited
District Basic Education and another v.
Shivkali and others, 2021 (10) ADJ 23 (DB);
Ahmedabad
Private
Primary
Teachers'
Association Vs. Administrative Officer and
others, (2004) 1 SCC 755; Independent
Schools'Federation of India (Registered) Vs.
Union of India and another, 2022 SCC
OnLine SC 1113; Writ A No. 5724 of 2024;
University College Ret. Teachers Welfare
Asso. Lko. Thru. its President Dr. S.S.
Chauhan and another v. State of U.P. and
others; Biharilal Dobray Vs. Roshan Lal
Dobray, (1984) 1 SCC 551 - referred to.
300 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
Constitution of India - Article 162; Gratuity Act,
1972 - S. 2(e); UP Basic Education Act, 1972.
List of Keywords
Teacher of basic institution; Gratuity; Triple
Benefit Scheme; Death-cum-retirement gratuity;
Superannuation; Office of profit; Post under
State Government; Executive instruction; Coextensive wit legislative power of State.
Case Arising From
Judgment and order dated 06.02.2024 passed in
Writ A no. 18971; Smt. Usha Verma and
another Vs. State of UP and 3 others.

## Text

7 All. Bindra Prasad Patel Vs. State of U.P. & Ors.
299
----------
(2025) 7 ILRA 299
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2025
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Special Appeal No. 41 of 2025

Bindra Prasad Patel ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Quazi
Mohammad
Akaram,
Shoar
Mohammad Khan

Counsel for the Respondents:
Kushmondeya Shahi

Issue for Consideration
(A) Entitlement of a teachers of basic institution
to get gratuity under Gratuity Act, 1972.
(B) Permissibility of a teacher of basic institution
to be covered within the definition of employee
u/s 2(e) of the Gratuity Act, 1972 so as to
extend the benefit of gratuity to them.
Headnotes
(A) Service Law - Gratuity - Entitlement -
Prayer sought for release of gratuity was
rejected
by
writ
court
-
Validity
challenged - Appeal was opposed on the
ground that the appellant holds a post
under the State Government and since is
governed by scheme for payment of
gratuity, framed by the State as such he
would be excluded from the purview of S.
2(e) and so benefit of gratuity under the
Gratuity Act, 1972 would not be available
to the appellant - It was contended on
behalf of appellant that for excluding a
person from the definition of employee
u/s 2(e), such person, in addition to
holding a post under Central or State
Government, must also be governed by a
scheme for gratuity under any other Act or
Rules - Applicability of Gratuity Act to a
teacher of basic institution felt into
consideration :
Held : A headmaster or assistant teacher
appointed
in
an
educational
institution
established by the Board holds a post under the
State Government - Non specification of Act or
Rules in the exclusion clause contained in
Section 2(e) and the use of expression "any
other act or by any rules" essentially conveys
that such scheme for payment of gratuity must
be backed by requisite force of law - Reference
to scheme for gratuity made under any other
act or by any rules conveys expressions of wide
magnitude. It cannot be restricted only to
scheme for gratuity made under any specific Act
or Rules, per se. Such scheme for gratuity for a
person holding post under State Government
can also be by way of Rules made in exercise of
executive powers of State. This is so as the
power with the State Government to frame
scheme for payment of gratuity by way of
executive instructions would be co-extensive
with the legislative powers of State. (See: Article
162 of the Constitution of India). The argument
of appellant's counsel that scheme for gratuity
framed by the State in respect of teachers of
basic institution since are not under any other
Act or by any specific Rules made under any
Act, therefore, the benefits under Gratuity Act,
1972 would be available to the appellant cannot
be accepted - The benefits available to an
employee under the Gratuity Act, 1972 would
thus not be available to a teacher of a basic
institution. [Paras 24, 27, 28 and 29] (E-1)
Case Law Cited
District Basic Education and another v.
Shivkali and others, 2021 (10) ADJ 23 (DB);
Ahmedabad
Private
Primary
Teachers'
Association Vs. Administrative Officer and
others, (2004) 1 SCC 755; Independent
Schools'Federation of India (Registered) Vs.
Union of India and another, 2022 SCC
OnLine SC 1113; Writ A No. 5724 of 2024;
University College Ret. Teachers Welfare
Asso. Lko. Thru. its President Dr. S.S.
Chauhan and another v. State of U.P. and
others; Biharilal Dobray Vs. Roshan Lal
Dobray, (1984) 1 SCC 551 - referred to.
300 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
Constitution of India - Article 162; Gratuity Act,
1972 - S. 2(e); UP Basic Education Act, 1972.
List of Keywords
Teacher of basic institution; Gratuity; Triple
Benefit Scheme; Death-cum-retirement gratuity;
Superannuation; Office of profit; Post under
State Government; Executive instruction; Coextensive wit legislative power of State.
Case Arising From
Judgment and order dated 06.02.2024 passed in
Writ A no. 18971; Smt. Usha Verma and
another Vs. State of UP and 3 others.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This intra court appeal arises out of
a composite judgment passed by learned
Single Judge in a bunch of writ petitions,
including
Writ-A
No.5588
of
2023,
whereby petitioner's claim for payment of
gratuity is rejected.

2. The petitioner-appellant in the
present case was employed as Headmaster
in a junior high school. He (petitioner)
received National Teachers' Award which
entitled him to two years extension in
service. The age of superannuation was
otherwise 62 years under the applicable
rules.
As
such,
the
appellant
has
superannuated on 31.3.2017 after availing
session's benefit at the age of 64 years. The
writ petition came to be filed by the
appellant with the prayer to direct the
District Basic Education Officer, Prayagraj
to release gratuity to him alongwith
interest. It is this claim which came to be
rejected by the learned Single Judge.

3.
In
order
to
appreciate
the
controversy raised in the matter it would be
necessary to refer to the background in
which the dispute has arisen. The State of
Uttar Pradesh enacted U.P. Basic Education
Act, 1972 (hereinafter referred to as the
'Act of 1972') primarily for establishing a
Board of Basic Education (hereinafter
referred to as the 'Board') and for matters
connected therewith. The Board is a body
corporate having perpetual succession and
common seal and has the power to acquire
and hold property. Its constitution and
powers are specified in the Act of 1972.
The
'Board'
has
established
various
educational institutions upto Junior High
School level (hereinafter referred to as
'Basic Institutions'). The appointment and
conditions of service of the teachers of the
Basic Institutions are governed by statutory
service regulations, namely U.P. Basic
Education (Teacher) Service Rules, 1981
(hereinafter referred to as the 'Rules of
1981'). The Rules of 1981 contained no
provision regarding payment of pension or
gratuity.

4. Payment of pension to a teacher in a
basic institution was earlier governed by
the Triple Benefit Scheme, 1965 issued
under the provisions of U.P. Retirement
Benefit Rules, 1961. On 8.3.1978 a
Government Order came to be issued by
the State of Uttar Pradesh introducing new
pension scheme in respect of teachers of
educational institution established by the
board. This Government Order expressly
excluded death-cum-retirement gratuity to
the teachers. It also denied benefit of
family pension to the dependents of
teachers after their death. This Government
Order
came
to
be
amended
vide
Government
Order
dated
31.3.1982.
Benefit of family pension was allowed to
the dependents of teachers of basic
institutions.
However,
death-cum-
7 All. Bindra Prasad Patel Vs. State of U.P. & Ors.
301
retirement gratuity, continued to be eluded
to the teachers of basic institutions.

5. On 23.11.1994 a new government
order was issued extending the benefit of
gratuity
to
the
teachers
and
other
employees of basic institutions. This
benefit, however, was dependent upon an
exercise of option by the teacher/employee
concerned to retire at the age of 58 years.
The age of superannuation was otherwise
60 years. The Government Order dated
23.11.1994 is reproduced hereinafter:-

"58 वर्ष की आयु पर ग्रेच्युटी की सुववधा

संख्या-6369/15-5-93-55/89

प्रेर्क,

 सेवा में,

श्री सुभार् चन्द्र बहुखण्डी
1.
विक्षा
विदेिक
(बेवसक), उ०प्र० लखिउ ।

वविेर् सवचव, उत्तर प्रदेि िासि। 2. विक्षा विदेिक (मा०),
उ०प्र० लखिउ।

विक्षा (5) अिुभाग

लखिऊः वदिांकः
23 िवम्बर, 1994

ववर्य- उत्तर प्रदेि बेवसक विक्षा पररर्द के विक्षकों/विक्षणेत्तर
कमषचाररयों, तथा सहायता प्राप्त गैर सरकारी जूवियर हाईस्कूलों के विक्षक एवं
विक्षणेत्तर कमषचाररयों को 58 वर्ष की आयु पर सेवा विवृत्त वकये जाये पर ग्रेच्युटी
की सुववधा अिुमन्द्य वकया जािा।

महोदय,

उपयुषक्त ववर्यक सवचव उत्तर प्रदेि बेवसक विक्षा
पररर्द, इलाहाबाद के पत्ांक बे०वि०प०/पेंिि 3166/92-93 वदिांक 3010-1992 के सन्द्दभष में मुझे यह कहिे का विदेि हुआ है वक उत्तर प्रदेि बेवसक
विक्षा पररर्द के अध्यापकों एवं विक्षणेत्तर कमषचाररयों सहायता प्राप्त गैर सरकारी
जूवियर हाईस्कूलों विक्षकों एवं विक्षणेत्तर कमषचाररयों को माध्यवमक विक्षको की
भांवत 58 वर्ष की आयु पर सेवा विवृत्त होिे का ववकल्प देिे की वस्थवत में ग्रेच्युटी
की सुववधा वदये जािे की मांग की है। सम्यक ववचारोंपरान्द्त श्री राज्यपाल यह
आदेि प्रदाि वकये हैं वक वजस प्रकार राज्य सहायता प्राप्त माध्यवमक ववद्यालयों के
विक्षकों को 58 वर्ष की आयु पर सेवा विवृत्त होिे का ववकल्प देिे पर राजकीय
कमषचाररयों की भावत ग्रेच्युटी की सुववधा अिुमन्द्य है, उसी प्रकार उ०प्र० बेवसक
विक्षा पररर्द के अध्यापकों एवं विक्षणेत्तर कमचाररयों, सहायता प्राप्त गैर सरकारी
माध्यवमक ववद्यालयों के विक्षणेत्तर कमषचाररयों की 68 वर्ष की आयु में सेवाविवृत्त
होिे की दिा में ग्रेच्युटी की सुववधा प्रदाि की जाये। यह सुववधा उन्द्ही अध्यापकों
एवं कमषचाररयों को अिुमन्द्य होगी जो 58 वर्ष की आयु पर सेवा विवृत्त होिे का
ववकल्प विधाषररत प्रपत् पर प्रस्तुत होिे एवं यह सुववधा उपरोक्त ववणषत सभी
विक्षकों/कमषचाररयों पर इि आदेिों के जारी होिे की वतवथ से लागू होगी।

2. मुझे यह भी कहिा है वक प्रश्नगत लाभ उन्द्ही अध्यापकों /
कमषचाररयों को अिुमन्द्य होगा जो संलग्ि विधाषररत प्रपत् पर िासिादेि जारी होिे के
वदिांक से 90 वदि के अन्द्दर दो प्रवतयों में संस्था में माध्यम से पेन्द्िि स्वीकृत करिे
वाले अवधकारी के पास अपिा ववकल्प पत् प्रेवर्त करेंगे। विधाषररत वतवथ तक
ववकल्प पत् ि प्रस्तुत वकये जािे पर यह स्वतः माि वलया जाएगा वक सम्बवन्द्धत
अध्यापक या कमषचारी इस राजाज्ञा में स्वीकृत सुववधा का लाभप्राप्त िहीं करिा
चाहता। एक बार प्रस्तुत वकया गया ववकल्प अवन्द्तम
 तथा अपररवतषिीय होगा।

3. बेवसक विक्षा पररर्दीय विक्षक / विक्षणेत्तर कमषचाररयों,
सहायता प्राप्त गैर सरकारी जूवियर हाईस्कूलों के विक्षक एवं विक्षणेत्तर कमषचाररयों
तथा सहायता प्राप्त गैर सरकारी उच्चतर माध्यवमक ववद्यालयों के विक्षणेत्तर
कमषचाररयों के ववकल्प की पहली प्रवत पेन्द्िि स्वीकृत अवधकारी के प्रवत हस्ताक्षरों
के बाद उसकी सेवा पुवस्तका में वचपकायी जायेगी। दूसरी प्रवत पेन्द्िि स्वीकृत
अवधकारी के प्रवत हस्ताक्षरों के बाद उससे अगले उच्च अवधकरी के कायाषलय में
सुरवक्षत रखी जायेगी।

4. यह आदेि ववत्त ववभाग की उिके अ० ि० सं० ई11/3483/X-94 वदिांक 23 िवम्बर, 1994 द्वारा प्राप्त सहमवत से विगषत
वकये जा रहे था।

भवदीय़
सुभार् चन्द्र बहुखण्डी
वविेर् सवचव ।"

6. A subsequent Government Order came
to be issued on 10.6.2001, permitting the
teacher/employees of the basic institutions to
revise the option to retire upto 1st July of the
year of their superannuation. This Government
Order was prospective and is reproduced
hereinafter:-

"140] विक्षा अिुभाग-5 संख्या-5491/15-5-2002212/2001, वदिांक 10 जूि, 2002

प्रेर्क,

वदिेि चन्द्र किौवजया,

वविेर् सवचव,

उत्तर प्रदेि िासि,

इलाहाबाद।
302 INDIAN LAW REPORTS ALLAHABAD SERIES

सेवा में,

विक्षा विदेिक, (बेवसक) एवं अध्यक्ष,

उत्तर प्रदेि बेवसक विक्षा पररर्द्,

इलाहाबाद।

ववर्य : उत्तर प्रदेि बेवसक विक्षा पररर्दीय विक्षक/ विक्षणेत्तर
कमषचाररयों के सेवाविवृवतक लाभों में पररवतषि हेतु ववकल्प की सुववधा वदये जािे के
संबंध में िीवत विधाषरण।

महोदय,

उपयुषक्त ववर्यक िासिादेि संख्या-6369/15-593-55/89, वदिांक 23-11-1994 के अिुक्रम में मुझे यह कहिे का विदेि
हुआ है वक उक्त िासिादेि द्वारा प्रदत्त ववकल्प को सुववधा के लाभ से वंवचत रह
गये बेवसक विक्षा पररर्द् विक्षक/विक्षणेत्तर कमषचाररयों के संबंध में ववकल्प
पररवतषि की सुववधा प्रदाि वकये जािे की मांग पर सम्यक ववद्यारोपरान्द्त श्री
राज्यपाल यह आदेि प्रदाि करते हैं वक उ.प्र. बेवसक विक्षा पररर्दीय विक्षकों/
विक्षणेत्तर कमषचाररयों द्वारा सेवाविवृवत्त के एक वर्ष अथाषत् वजस िैवक्षक सत् में
उिकी सेवाविवृवत्त होगी, उसको पहली जुलाई तक ववकल्प पररवतषि कर सकते हैं।
वकन्द्तु ऐसे कमषचारी जो 58 वर्ष की आयु पर सेवाविवृवत्त का ववकल्प देते हैं, को
सेवाविवृवत्त के पूवष तक ववकल्प पररवतषि की सुववधा अिुमन्द्य होगी। यह व्यवस्था
इस िासिादेि के जारी होिे की वतवथ से लागू होगी।

2. यह आदेि ववत्त ववभाग के अिासकीय संख्या-ई-11/753
वस-2002, वदिांक 4-6-2002 में प्राप्त उिकी सहमवत से जारी वकये जा रहे हैं।

भवदीय
(वदिेि चंन्द्र किौवजया)
 वविेर् सवचव ।"

7.
The
age
of
superannuation
of
teachers/employees of basic institutions was
enhanced to 62 years from erstwhile 60 years
vide Government Order dated 4.2.2004. The
entitlement to receive gratuity on opting to
retire at the age of 58 years was altered to 60
years. Teachers and employees who were
continuing in service on account of sessions
benefit were also extended the benefit of
gratuity under the scheme. Rules of 1981 were
also directed to be amended accordingly within
a month. The Government Order dated 4.2.2004
is reproduced hereinafter:-

"बेवसक एवं सहायता प्राप्त उच्च प्राथवमक ववद्यालयों के विक्षकों
की सेवा विवृवत्त

आयु 60/62 वर्ष

संख्या 289/79-6-04-28(5)/2004

 प्रेर्क,

सेवा में,

श्री हररराज वकिोर

विक्षा विदेिक (बेवसक)

सवचव,

उत्तर प्रदेि लखिऊ।

उत्तर प्रदेि िासि।

 विक्षा अिुभाग-6
लखिऊ: वदिांक 4 फरवरी,
2004

ववर्य: पररर्दीय प्राथवमक ववद्यालय, पररर्दीय उच्च प्राथवमक
ववद्यालय तथा उच्च प्राथवमक ववद्यालयों से अध्यापकों की अवधवर्षता आयु
वतषमाि 60 वर्ष से 62 वर्ष वकये जािे के सम्बन्द्ध में। महोदय,

िासि द्वारा सम्यक ववचारोपरान्द्त यह विणषय वलया गया है वक
पररर्दीय प्राथवमक ववद्यालय, पररर्दीय उच्च प्राथवमक ववद्यालय तथा सहायता प्राप्त
उच्च प्राथवमक ववद्यालयों में िासि द्वारा सृवजत पदों पर वियमािुसार कायषरत
अध्यापकों की वतषमाि अवधवर्षता आयु में वृवि कर दी जाये।

अतः श्री राज्यपाल महोदय तात्कावलक प्रभाव से पररर्दीय
प्राथवमक ववद्यालय, पररर्दीय उच्चा प्रावमक ववद्यालय तथा सहायता प्राप्त उच्च
प्राथवमक ववद्यालयों में िासि द्वारा सृवजत पदों पर वियमािुसार कायषरत अध्यापकों
की वतषमाि अवधयर्षता आयु को 60 वर्ष से बढाकर 62 वर्ष वकये जािे की सहर्ष
स्वीकृवत प्रदाि करते हैं। फलस्वरूप 58 वर्ष की अवधवर्षता आयु पर वमलिे वाले
सेवा िैवृवत्तक लाभ अब 60 वर्ष की अवधवर्षता आयु पर तथा 60 वर्ष की
अवधवर्षता आयु पर वमलिे वाले सेया िैवृवत्तक लाभ 62 वर्ष की अवधवर्षता आयु
पर अिुमन्द्य होंगे।

श्री राज्यपाल महोदय यह भी आदेि प्रदाि करते हैं वक जो
विक्षक जुलाई, 2003 के पश्चात् अवधवर्षता आयु पूणष कर सत्ान्द्त लाम पर चल
रहे हैं उन्द्हें भी अवधवर्षता आयु वृविः सम्बन्द्धी लाभ प्रदाि वकया जायेगा।

इस सम्बन्द्ध में पूवष में विगषत समस्त िासिादेि उक्त सीमा तक
संिोवधत समझे जायेंगे तथा उिकी िेर् िते यथावत् रहेंगी।

उत्तर प्रदेि बेवसक विक्षा (अध्यापक) सेवा वियमावली, 1981
के संगत वियमों में आवश्यक संिोधि की कायषवाही िासिादेि जारी होिे के तीस
वदि के अन्द्दर सुविवश्चत कर ली जायेगी।

यह आदेि ववत्त ववभाग के अिासकीय पत् संख्या यू०ओ०ई०11-207/2004 वदिांक 04-2-2004 में प्राप्त सहमवत के अन्द्तगषत विगषत
वकये जा रहे हैं।

भवदीय
7 All. Bindra Prasad Patel Vs. State of U.P. & Ors.
303

ह०/- हररराज वकिोर,
 सवचव।"

8. On acceptance of the recommendation
made by Pay Committee U.P., 2008, with effect
from 1.1.2006, the rate of gratuity was revised
upto Rs. 10 lakhs. This scheme relating to
payment of gratuity to the teachers and other
employees of basic institutions continues to
subsist, with subsequent revision of rate on
acceptance of later Pay Committee Reports etc.

9. A controversy arose in respect of claim
of gratuity for the teachers who had not
exercised the option to retire at the age of 58/60
years but died before it. In Writ-A No.40568 of
2016 (Noor Jahan vs. State of U.P. and 4
others) the claim of the widow of deceased
teacher namely, Noor Jahan, for payment of
gratuity was allowed on 4.1.2018. This
judgment of learned Single Judge was followed
in Writ-A No.17399 of 2019 (Usha Rani vs.
State of U.P. and others). The judgment in Usha
Rani (supra) was unsuccessfully challenged in
special appeal. The State Government then
challenged the Division Bench judgment in
Usha Rani (supra) before the Supreme Court in
Special Leave to Appeal (C) No(s).19089 of
2021, which was dismissed vide following
orders passed on 29.4.2022:-

"Learned counsel for the petitioners
does not want to press the instant petition.

We find no reason to interfere in the
order impugned in our jurisdiction under
Article 136 of the Constitution.

Accordingly,
the
Special
Leave
Petition is dismissed.

We direct the State Authority to
make the payment of gratuity in terms of
order of the High Court impugned in the
instant proceedings to the respondent within
a period of four weeks from today failing
which that amount shall carry further
interest at the rate of 18% p.a. until payment
and a report of compliance be sent to this
Court.

Pending application(s), if any, shall
stand disposed of."

10. In District Basic Education and
another vs. Shivkali and others 2021 (10) ADJ
23 (DB) a Division Bench of this Court
crystallised the issue on the above aspect and
held as under in para 11 to 13 of the judgment:-

"11. The issue that arises for our
consideration is whether an employee who, by a
certain a date, could exercise an option to retire
early to avail the benefit of gratuity, dies before
that date, and prior to his death had not
exercised that option, should his heirs be denied
the benefit of death gratuity which, atherwise,
would have been available to them had that
employee died at that age after exercising the
option.

12. To have an answer to the issue
we would have to examine as to- (a) what had
been the purpose of conferment of such benefit
on exercise of the option; and (b) whether the
Government Orders that conferred the benefit
had fixed a time period by which that option
was to be exercised, if so, whether the
incumbent i.e. first respondent's husband had
crossed the time limit by which he could have
exercised that option. In so far as the purpose
of conferring such benefit is concerned the
same is obvious, which is to provide social
security to those who forego two years of
additional service. There could be a latent
purpose as well, which is to encourage people
to seek early retirement may be to streamline
the organization. Be that as it may, it is a
beneficial provision to accord social security to
the employee and his or her dependents
therefore, an interpretation that promotes and
serves the purpose for which it is crafted must
be
preferred.
Under
the
circumstances,
whatever the purpose might be, the same is
subserved where the nature exercises the option
on behalf of the incumbent by letting him not
survive even upto the last day by which he could
have exercised the option. Therefore, denying
the heirs/dependents of such an incumbent the
benefit of social security that, otherwise, would
have been available to them had the incumbent
304 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised his option would defeat the very
purpose for which the policy was made. Thus,
to ensure that the policy serves its purpose fully,
in our view, where a last date for exercise of the
option is yet to arrive and before that date the
incumbent dies, without exercising his option,
his dependents should not be deprived of the
benefit which they would have been otherwise
entitled to had the incumbent exercised his
option.

13. In so far as the contention of the
learned counsel for the appellants that by
Government Order dated June 10, 2002 the
option could have been exercised only upto first
day of July in which the incumbent was to attain
the age of 58 years is concerned, the same is
not acceptable. Because a plain reading of the
Government Order dated June 10, 2002 would
reflect that it is in two parts. The first part is in
respect of fixing the last date for exercise of
option to retire early to avail the benefits of
early retirement whereas the second relates to
the last date for change of the option submitted
earlier. In the first part, the age of retirement is
not mentioned. What is stated in the first part is
that those who could not exercise their option to
avail the benefits under the earlier Government
Order dated 23.11.1994 may exercise their
option by the first day of July of the year in
which they attain the age of superannuation.
The second part gives option to those, who had
already opted to retire at the age of 58 years, to
change their option before they retire. Meaning
thereby that if suppose a person has given an
option to retire at the age of 58 years, before he
attains the age of 58 years, he can change the
option. Thus, as by Government Order dated
February 4, 2004 the age of superannuation
was enhanced from 60 years to 62 years by
specifically providing that the benefits that were
available on retirement at the age of 58 years
would now be available upon completion of the
age of 60 years and those that were to be
available at the age of 60 years, would now be
available on completion of the age of 62 years,
by necessary implication, the option that could
earlier be exercised upto the first day of July in
which the incumbent was to attain the age of 58
years became exercisable upto the first day of
July in which the incumbent would attain the
age of 60 years."

11. It is in the above backdrop that the
claim of appellant for payment of gratuity
required
consideration.
Undisputedly,
the
appellant did not exercise any option to retire at
the age of 60 years and thereby claim gratuity.
In fact the appellant continued to work uptill the
age of superannuation i.e. 62 years. His
working in fact was upto 64 years. In such
circumstances, claim of the appellant for
payment of gratuity under the applicable
scheme for gratuity, enforced in the Basic
Institutions, is clearly not made out.

12. Learned counsel for the appellant has,
however, pressed appellant's claim for gratuity
on the basis of provisions contained in the
Payment of Gratuity Act, 1972. Learned
counsel has placed Section 1(3) of the Payment
of Gratuity Act, 1972 as also the notification
issued by Ministry of Labour, dated April 3,
1997, whereby the Central Government has
extended the provisions of the Payment of
Gratuity Act, 1972 (hereinafter referred to as
the 'Gratuity Act, 1972') upon the educational
institution in which 10 or more persons are
employed or were employed on any day
preceding 12 months as a class of establishment
to which the act applied, with effect from the
date of publication of notification.

13. A controversy arose in respect of the
teachers
of
private
schools
regarding
applicability of the provisions of the Act of
1972. This issue came to be resolved by the
Supreme Court in Ahmedabad Private Primary
Teachers'
Association
Vs.
Administrative
Officer and others, (2004) 1 SCC 755. In this
judgment the Full Bench Judgment of Gujrat
High
Court
rendered
in
Special
Civil
Application No. 5272 of 1987 holding the
teachers of private schools not to be covered
under the Act was affirmed. Only the
employees (other than teachers) were held
covered by the Gratuity Act, 1972.

14. The Gratuity Act, 1972 was later
amended
vide
Payment
of
Gratuity
7 All. Bindra Prasad Patel Vs. State of U.P. & Ors.
305
(Amendment) Act, 2009. The constitutional
validity of the amending act was challenged
before the Supreme Court. The issue came to be
resolved by the Hon'ble Supreme Court in
Independent Schools' Federation of India
(Registered) Vs. Union of India and another,
2022 SCC OnLine SC 1113. The challenge to
the amendment made in the Gratuity Act, 1972
vide 2009 Amendment, by private schools, was
rejected. The Court held as under in paragraph
19:-

"19. 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-42013/1/95SS.(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."

15. Reliance is placed by learned counsel
for the appellant on the aforesaid judgment to
contend that the provisions of the Gratuity Act,
1972 would be applicable upon the basic
institutions and the denial of gratuity to
appellant is bad in law. Learned counsel has
also placed reliance upon Section 14 of the
Gratuity Act, 1972 to contend that the
provisions of the Gratuity Act, 1972 or any rule
made thereunder will have overriding effect,
inasmuch
as,
any
inconsistent
provision
therewith would be invalid. Learned counsel
further submits that the scheme for payment of
gratuity applicable upon the basic institutions
do not extend benefits as are available under the
Gratuity Act, 1972, inasmuch as, the payment
of gratuity under the applicable scheme is
available only if the teacher opts to retire two
years
prior
to
attaining
the
age
of
superannuation whereas gratuity under the
Gratuity Act, 1972 is available on attaining the
age of superannuation. Submission is that
superior benefits extended to the teacher under
the Gratuity Act, 1972 cannot be denied to him.

16. Sri Quazi Mohammad Akaram,
learned counsel for the appellant also places
reliance upon a judgment of Lucknow Bench of
this Court in Writ - A No. 5724 of 2024
(University College Ret. Teachers Welfare
Asso. Lko. Thru. Its President Dr. S.S. Chauhan
and another Vs. State of U.P. and others) to
contend that the gratuity will be payable to the
teachers of basic institution.

17. Per contra, Sri Sri Kushmondeya Shahi
learned counsel appearing for the respondent Board
and the Basic Institution submits that the provisions
of the Gratuity Act, 1972 will not be applicable
upon the teachers of basic institution in view of the
definition of 'employee' contained in Section 2(e)
of the Gratuity Act, 1972. He also places reliance
upon judgment of Supreme Court in Biharilal
Dobray Vs. Roshan Lal Dobray, (1984) 1 SCC 551
to contend that a teacher of basic institution holds a
post under the State Government and since is
governed by scheme framed by the State for
payment of gratuity to such teachers, as such, the
Gratuity Act, 1972 would not be applicable. Sri
Shahi, therefore, contends that the provisions of the
Gratuity Act, 1972 cannot be pressed into service
by the appellant to claim gratuity.

18. On the basis of rival submissions made
by the respective counsel for the parties the
306 INDIAN LAW REPORTS ALLAHABAD SERIES
moot question that arises for our consideration,
in the facts of the present case, is as to whether
a teacher of a basic institution would be covered
within the definition of employee, as is
contained under Section 2(e) of the Gratuity
Act, 1972 so as to extend the benefit of gratuity
thereunder to such teacher?

19. Section 2(e) of the Gratuity Act, 1972
is reproduced hereinafter:-

"Section 2(e) "employee" means any
person (other than an apprentice) who is
employed for wages, whether the terms of such
employment are express or implied, in any kind
of work, manual or otherwise, in or in
connection with the work of a factory, mine,
oilfield, plantation, port, railway company,
shop or other establishment to which this Act
applies, but does not include any such person
who holds a post under the Central Government
or a State Government and is governed by any
other Act or by any rules providing for payment
of gratuity."

20. Employee under the Gratuity Act,
1972 would be a person (other than an
apprentice) who is employed for wages,
whether the terms of such employment are
express or implied, in any kind of work, manual
or otherwise, in or in connection with the work
of a factory, mine, oilfield, plantation, port,
railway company, shop or other establishment
to which this Act applies, but does not include
any such person who holds a post under the
Central Government or a State Government and
is governed by any other Act or by any rules
providing for payment of gratuity.

21. Appellant's claim for benefit under the
Gratuity Act, 1972 is primarily resisted on the
ground that the appellant holds a post under the
State Government and since is governed by
scheme for payment of gratuity, framed by the
State as such he would be excluded from the
purview of Section 2(e) of the Gratuity Act,
1972. Benefit of gratuity under the Gratuity
Act, 1972 would thus not be available to the
appellant.

22. We are, therefore, required to consider
as to whether (i) a teacher employed in a basic
institution holds a post under State Government
and (ii) is governed by any other Act or by any
Rules providing for payment of gratuity?

23. On the first aspect relating to a teacher
of a basic institution holding a post under State
Government is concerned, the issue is no longer
res-integra. In Biharilal Dobray (supra) a
question arose before the Supreme Court as to
whether an Assistant Teacher of a Basic
Primary School run by U.P. Board of Basic
Education under U.P. Basic Education Act,
1972 was holding office of profit under the
State Government so as to incur disqualification
under Article 191(1)(a) of the Constitution of
India. The Court examined the provisions of the
Act of 1972 to determine the status of board
constituted under the Act of 1972. The
statement of objects and reasons of the Act of
1972 were noticed by the Court in paragraph 12
of the judgment. In paragraph 13, the Court
noted the functions of the Board as were set out
in Section 4 of the Act of 1972. After
elaborately examining the scheme of the Act the
Hon'ble Supreme Court rejected the argument
of the respondent that an Assistant Teacher
appointed in the institution set up by the Board
is not holding an office of profit. In Paragraphs
23 and 24, the Court held as under:-

"23.
The
contention
of
the
respondent is that the Board being an authority
subject to the control of the Government cannot
be considered as the Government itself as
otherwise Article 58(4) and Article 66(4) of the
Constitution which refer to the Government as
well as other authority subject to the control of
any Government would have to be treated as
suffering from the vice of redundancy. It is
further argued that when the Constitution itself
has made a distinction between the Government
and other authority subject to the control of the
Government, in the absence of any reference to
any other authority subject to the control of the
Government in Article 191(1)(a) of the
Constitution, the holding of an office of profit
under the Board which is only an authority
under the control of the Government would not
7 All. Bindra Prasad Patel Vs. State of U.P. & Ors.
307
amount to a disqualification. The argument is
indeed quite attractive. But it is difficult to
accept it having regard to the provisions of the
Act and the rules. We have already shown that
the Board is not an authority which is truly
independent of the Government and that every
employee of the Board is in fact holding his
office under the Government. This is not even a
case of attempting to pierce the veil and trying
to find out the true nature of something after
uncovering it but a case where its true nature
i.e. the subordination of the Board and its
employees to the Government is writ large on
the face of the Act and the rules made
thereunder.

24. Having considered all aspects of
the question in the light of the high purposes
underlying Article 191(1)(a) of the Constitution,
we are of the view that the respondent was
holding an office of profit under the State
Government and his nomination was rightly
rejected by the Returning Officer. The judgment
of the High Court is, therefore, liable to be
reversed."

24. Judgment of Supreme Court in
Biharilal Dobray (supra) has held the field for
the last more than four decades. We have,
therefore, no hesitation in coming to the
conclusion that a headmaster or assistant
teacher appointed in an educational institution
established by the Board holds a post under the
State Government. The first issue is answered,
accordingly.

25. This takes us to the second part of the
appellant's contention that the scheme for
payment of gratuity framed in respect of
teachers of basic institution since is not
governed by any other Act or by any Rules
providing for payment of gratuity, as such, the
Teacher of a basic institution would not be
excluded from the ambit of Gratuity Act, 1972.
For excluding a person from the definition of
employee under Section 2(e) of the Gratuity
Act, 1972 such person in addition to holding a
post under Central or State Government must
also be governed by a scheme for gratuity under
any other Act or Rules.

26. What is important is that such
employee holding a post under Central or State
Government must be governed by any other
scheme providing for payment of gratuity under
any other Act or Rules. The Act or Rules
whereunder such scheme for gratuity is framed
is not specified.

27. Ordinarily, a scheme for payment of
gratuity would be made under any Act or Rules
when it comes to a person holding a post under
Central or State Government is concerned. Non
specification of Act or Rules in the exclusion
clause contained in Section 2(e) and the use of
expression "any other act or by any rules"
essentially conveys that such scheme for
payment of gratuity must be backed by requisite
force of law.

28. Reference to scheme for gratuity made
under any other act or by any rules conveys
expressions of wide magnitude. It cannot be
restricted only to scheme for gratuity made
under any specific Act or Rules, per se. Such
scheme for gratuity for a person holding post
under State Government can also be by way of
Rules made in exercise of executive powers of
State. This is so as the power with the State
Government to frame scheme for payment of
gratuity by way of executive instructions
would be co-extensive with the legislative
powers of State. (See: Article 162 of the
Constitution of India). The argument of
appellant's counsel that scheme for gratuity
framed by the State in respect of teachers of
basic institution since are not under any other
Act or by any specific Rules made under any
Act, therefore, the benefits under Gratuity Act,
1972 would be available to the appellant
cannot be accepted.

29. We, accordingly, hold that a teacher
(including Headmaster) of a basic institution
cannot be held to be an employee under Section
2(e) of the Gratuity Act, 1972. The benefits
available to an employee under the Gratuity
Act, 1972 would thus not be available to such a
teacher. The claim of appellant for extending
the benefit of gratuity under the Gratuity Act,
1972, accordingly, fails.
308 INDIAN LAW REPORTS ALLAHABAD SERIES

30.
Special
Appeal
is,
therefore,
dismissed.
----------
(2025) 7 ILRA 308
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2025
BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 120 of 2025
&
Special Appeal No. 122 of 2025

State Of U.P. & Ors. ...Appellants
Versus
Shiv Datt Joshi & Ors. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Gaurav Mehrotra, Akhilesh Kumar Kalra,
Rajesh Chandra Mishra, Ritika Singh

Issue for Consideration
(A) Effect of not impleading all the affected
parties and not providing them opportunity of
hearing in compliance of the principle of natural
justice, particularly in the light of fact that few
similarly
situated
affected
parties
were
impleaded and had contested the matter before
the learned Single Judge.
(B) Legality of the promotion granted from antidate.
(C) Impact and purpose of 'Proviso'.
(D)
Applicability
of
doctrine
of
Ut
Res
MagisValeat Quam Pereat.
(E) Use of the word 'Person', whether it
connotes singular or plural.
 (F) Meaning of the word 'Adjudication'.
Headnotes
(A)
Service
law
-
Constitution
of
India,1950 - Article 14 - Principle of
natural justice - Non-joinder of all the
affected parties - Seniority list was
finalized after considering the objections -
In writ petition arising out of challenge to
seniority list, it is claimed that the
appellant, who are the direct recruits,
were
not
afforded
a
reasonable
opportunity
of
hearing,
though
few
affected parties belonging to the direct
quota groups were impleaded as private
respondents and they were represented
through their respective counsel - Effect :
Held : Impleadment of a few affected
employees would be sufficient compliance
relating to the principles of joinder of parties as
they are in a position to defend the interest of
all other affected parties in representative
capacity and non-joining of all the parties would
not be fatal - If the party raises a plea of noncompliance of principles of natural justice, this
in itself may not always work for setting aside a
judgment unless it is shown that the party
raising
such
an
objection
has
suffered
consequential failure of justice - This Court does
not find much substance in the submissions of
the learned Senior Counsel seeking to set aside
the order passed by the learned Single Judge
solely on the ground of not being provided with
an opportunity of hearing especially when no
prejudice could be established. [Paras 42, 43
and 49]
(B) Service Law - Promotion - Granted
from an ante-date - Validity challenged -
It is claimed that the promotion could
have been made only from the date of
issuance of the order - Earlier objections
of directly appointed employee regarding
date of promotion was rejected thrice -
Raising of same issue after 7 years -
Permissibility - Relevancy of Proviso to R.
8 of the Rules of 1991 considered:
Held: The proviso carves an exception and it is
an indicator of the fact that the Rules reserves
the power or rather it enabled the employer to
invoke
the
said
proviso
and
provide
appointment on the promoted post from a
particular back date, if required. If at all, the
promotions were to be covered only from the