# Guru Charan v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-04
- **Case number:** Writ-A No. 8605 of 2022
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guru-charan-v-state-of-u-p-ors-49091
- **Pages:** 16

## Headnote

A. Allahabad High Court Rules, 1952 -
Ch. XXII R. 7 - Writ - Maintainability -
Res judicata - Claim subsequently
rejected, how far barred the writ -
Held, subsequent rejection of claims of
petitioners clearly constitutes a fresh
cause of action due to which, the same
would not be barred under Ch. 22 R. 7
of the Allahabad High Court Rules.
(Para 3)
B. Service Law - UP Aided Educational
Institutions
Employees
Contributory
Provident Fund, Insurance, Pension
Rules, 1964 - GO dated 10.08.1978
and 29.08.181 - Benefit of Gratuity
Scheme - Age of superannuation -
Option to chose either 58 years or 60
years
- Rule
4
provide that the
benefits of Gratuity Scheme would be
applicable only upon those teachers
who
would
give
an
option
to
superannuate at the age of 58 years -
Held, the natural corollary of the
proposition
was
that
in
case
of
teachers
exercising
their
right
to
continue in service up-till the age of 60
years, the benefit of gratuity would be
unavailable
since
they
would
be
getting extra salary for the two years
of service rendered thereafter. (Para
12 and 32)
C. Service Law - Benefit of Gratuity
Scheme - Entitlement - Petitioner's
predecessors did not performed extra
years service between the age of 58
years
to
60
years
- Payment
of
gratuity refused - Validity challenged
- Held, the grant of gratuity is a
natural corollary to services not being
rendered for the extra period of two
years in terms of conditions of Rules of
1981 and as such, such an option once
granted
earlier
can
definitely
be
revised - Denial of grant of gratuity to
the petitioners in terms of conditions
of Rules of 1981 is clearly contrary to
provisions not only of the aforesaid
Rules of 1981. (Para 66 and 67)
D.
Interpretation
of
Statute
-
Beneficial
legislation
-
Liberal
construction
-
The
beneficial
provisions are required to be construed
liberally in order to provide maximum
effect to such provision. (Para 56)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,805 of 53,847. This is a partial read: ask again with offset=39805 for what follows._

9 All. Guru Charan Vs. State of U.P. & Ors.
603

25. The respondents are directed to
follow
the
consequential
action
in
pursuance thereof.
----------
(2022) 9 ILRA 603
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 8605 of 2022
with
Writ-A Nos. 8611 of 2022, 8617 of 2022, 9736
of 2022, 9913 of 2022, 10011 of 2022, 10247 of
2022, 10454 of 2022, 10520 of 2022, 10553 of
2022, 10614 of 2022, 11167 of 2022, 19613 of
2018

Guru Charan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar, Sri Ram Krishna Patel

Counsel for the Respondents:
C.S.C., Sri Chandan Kumar, Sri J.N. Maurya

A. Allahabad High Court Rules, 1952 -
Ch. XXII R. 7 - Writ - Maintainability -
Res judicata - Claim subsequently
rejected, how far barred the writ -
Held, subsequent rejection of claims of
petitioners clearly constitutes a fresh
cause of action due to which, the same
would not be barred under Ch. 22 R. 7
of the Allahabad High Court Rules.
(Para 3)
B. Service Law - UP Aided Educational
Institutions
Employees
Contributory
Provident Fund, Insurance, Pension
Rules, 1964 - GO dated 10.08.1978
and 29.08.181 - Benefit of Gratuity
Scheme - Age of superannuation -
Option to chose either 58 years or 60
years
- Rule
4
provide that the
benefits of Gratuity Scheme would be
applicable only upon those teachers
who
would
give
an
option
to
superannuate at the age of 58 years -
Held, the natural corollary of the
proposition
was
that
in
case
of
teachers
exercising
their
right
to
continue in service up-till the age of 60
years, the benefit of gratuity would be
unavailable
since
they
would
be
getting extra salary for the two years
of service rendered thereafter. (Para
12 and 32)
C. Service Law - Benefit of Gratuity
Scheme - Entitlement - Petitioner's
predecessors did not performed extra
years service between the age of 58
years
to
60
years
- Payment
of
gratuity refused - Validity challenged
- Held, the grant of gratuity is a
natural corollary to services not being
rendered for the extra period of two
years in terms of conditions of Rules of
1981 and as such, such an option once
granted
earlier
can
definitely
be
revised - Denial of grant of gratuity to
the petitioners in terms of conditions
of Rules of 1981 is clearly contrary to
provisions not only of the aforesaid
Rules of 1981. (Para 66 and 67)
D.
Interpretation
of
Statute
-
Beneficial
legislation
-
Liberal
construction
-
The
beneficial
provisions are required to be construed
liberally in order to provide maximum
effect to such provision. (Para 56)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Writ A No. 17399 of 2019; Usha Rani Vs
St. of U.P. & ors. decided on 07.11.2019
2. Special Appeal (D) No. 1168 of 2020; St.
of U.P. V. Prabha Shukla
3. Sushila Yadav Vs St. of U.P. & ors.;
(2021)10 ADJ 235
4. Writ A No. 17399 of 2019; Usha Rani Vs
St. of U.P. & ors.
5. Writ A No. 40568 of 2016; Noor Jahan Vs St.
of U.P. & ors.
604 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Writ A No. 8679 of 2018; Smt. Omwati Vs St.
of U.P. & ors.
7. Prakash Chandra Sharma Vs Deputy Director
of Education, Bareilly & ors.; (1997) 2 UPLBEC
1155
8. St. of U.P. & anr. Vs Shashthi Dutt Shastri &
ors.; 2017 (Suppl.) ADJ 768(DB)
9. Writ A No. 14575 of 2021; Shikha Sharma Vs
St. of U.P. & ors.
10. Panchi Devi Vs St. of Rajasthan & ors.;
(2009)2 SCC 589
11. Maniben Maganbhai Bhariya Vs District
Development Officer Dahod & ors.; AIR 2022
(SC) 2119
12. Writ Petition No. 2727(S/S) of 2014;
Jagteshwari Maurya Vs St. of U.P. & ors.
13. Writ A No. 14397 of 2019; Renu Gupta Vs
St. of U.P. & ors.
14. Writ Petition No. 6173(S/S) of 2014; Mala
Tripathi versus St. of U.P. & ors.
15. Special Appeal Defective No. 1168 of 2020;
Prabha Shukla Vs St. of U.P.
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Rajesh Kumar, Mr. Ram
Krishna Patel, Mr. Adarsh Singh, Mr. Om
Prakash Chaube, Mr. Gorakh Yadav, Mr.
Kamal Kumar Kesherwani, Mr. Chandra
Sekhar Pandey,Sr. Advocate and Mr. Manoj
Yadav, learned counsels appearing for
petitioner and Mr. J.N. Maurya, learned
Chief Standing Counsel assisted by Mr.
Chandan Kumar, learned Standing Counsel
appearing on behalf respondent-State.

2. The question of law required to be
adjudicated upon in this bunch of petitions
is as follows:

(a) Whether option pertaining to grant
of death-cum-retirement gratuity explicitly
given or deemed to have given in terms of
statutory rule by a member of teaching staff
of Intermediate College can be revised
without amendment in statutory rules only
on the basis of subsequent Government
Orders ?

(b) Whether such revision of option
can be exercised at the instance of family
members of such a teacher consequent
upon his demise having failed to exercise
such an option during his life time ?

3. At the very outset, learned counsel
for respondents have taken a plea of some
of the petition's not being maintainable in
terms of Chapter 22, Rule 7 of the
Allahabad High Court Rules since earlier
also the same petitioners had filed petitions.
However it is not disputed that the earlier
petitions had not challenged the orders
rejecting claims of petitioner, which are
under challenge in the present petitions. As
such, the subsequent rejection of claims of
petitioners clearly constitutes a fresh cause
of action due to which in the considered
opinion of this Court, the same would not
be barred under Chapter 22 Rule 7 of the
Allahabad High Court Rules. The petitions
are therefore held maintainable.

4. The predecessors-in-interest of
petitioners
were
teachers
serving
in
Government Aided Private Educational
Institutions. There was disparity in service
conditions of the teachers serving in
Government run institutions and those
serving in Government aided private
educational institutions. Government of
India
appointed
Secondary
Education
Service Commission, which made certain
recommendations for removing disparity.
On basis of these recommendations. State
of Uttar Pradesh initially introduced a
scheme known as "Triple Benefit Scheme'
and framed Rules known as 'Uttar Pradesh
Aided Educational Institutions Employees
Contributory Provident Fund, Insurance,
9 All. Guru Charan Vs. State of U.P. & Ors.
605
Pension Rules, 1964' which came in effect
from 1st October, 1964. In pursuance of the
aforesaid Rules, Government Order dated
17-12-1965 was issued for implementing
the Scheme under which the benefits of (i)
contributory provident fund, (ii) special life
Insurance, and (iii) pension including the
family pension were to be given to all the
teachers serving in the State aided primary
schools, Junior High Schools, Higher
Secondary
Schools,
Degree
Colleges,
Training
Colleges
etc.
However,
the
pensionery benefits under the above Triple
Benefits Scheme were still not at par with
pensionery benefits admissible to teachers
serving in Government institutions. To
remove this disparity and in order to
provide the same pensionery benefits to the
teachers of Government Aided Private
Institutions which were admissible to
Government
teachers,
State
of
Uttar
Pradesh issued Government Order dated
31st March, 1978. However, as the age of
superannuation in case of teachers serving
in Government colleges was 58 years, the
teachers serving in Government Aided
Private Institutions were asked to opt for
the age of superannuation at 58 years for
getting the pensionery benefits at par with
the
teachers
serving
in
Government
Colleges. Government Order inviting such
option was issued on 10-8-1978. Under this
Government Order if teacher opted to retire
at the age of 58 years, he was to get deathcum-retirement gratuity along with other
pensionery benefits.

5. Additionally, the 'Rules of U.P.
School and College Teachers' Gratuity
Fund' were framed and came into effect
from 01.04.1964 which postulated grant of
gratuity to teachers of Aided Educational
Institution. They were to apply to all
members of the teaching staff of State
Aided Educational Institutions managed
either by local body or private management
which were recognized and aided by the
State Education Department pertaining to
primary school, junior high school, higher
secondary school and degree college.
Paragraph 5 of the said Rules provided
gratuity and methods of its calculation in
view of services rendered provided the
teacher at the time of his death in service
had put in not less than three years
continuous service. There was no option
required to be given by a teacher for
inclusion in the aforesaid scheme which
became automatically applicable upon all
such teachers indicated herein-above.

6. Since the pensionary benefits of
teachers serving in State Aided NonGovernment Educational Institution run by
private management were not at par with
their counter parts in Government Colleges,
the
State
Government-considered
the
demand agitated by such teachers and
issued
a
Government
Order
dated
31.03.1978 which provided that permanent
whole time teachers in State Aided
Secondary Educational Institutions run by
the private management and local bodies
retiring on or after 01.03.1977 would be
entitled to get pension calculated at the
same time and in the same manner as
admissible to their counter parts employed
in the Government Colleges in the equal
rank and grade.

7. This benefit was, however,
extended subject to the conditions, inter
alia, that benefit of death-cum-retirement
gratuity of family pension to dependents of
a teacher after his death available to
teachers in Government Colleges would not
be available and the Contributory Provident
Fund Scheme in relation to such teachers
would be supplanted by General Provident
Fund Scheme with effect from 01.03.1977.
606 INDIAN LAW REPORTS ALLAHABAD SERIES
The Triple Benefit and Contributory
Provident Fund Schemes were deemed to
be amended accordingly in respect of such
teachers.

8. The teachers serving in State Aided
Secondary
Educational
Institutions
controlled
by
Private
Managements,
however, continued to agitate for more
pensionary benefits and in consideration of
their demand, the State Government issued
another
Government
Order
dated
10.08.1978, thereby extending the benefit
of
death-cum-retirement
Gratuity
to
teachers of State Aided Non-Government
Secondary Institutions on their opting for
retirement at the age of 58 years and also
subject to the fulfilment of other conditions
stipulated therein. It may be usefully
observed
that
benefit
of
death-cumretirement gratuity was available to the
teachers in Government colleges and it was
by means of the said Government Order
that the said benefit was extended for the
first time to the teachers in the State Aided
Non-Government Educational Institutions.

9. In order to avail of the benefit of
death-cum-retirement gratuity, a teacher in
State Aided Non-Government Educational
Institution was required to give his option
for retirement at the age of 58 years which,
it may be stated, is the prescribed age for
the retirement of teachers in Government
Colleges as against 60 years which is the
prescribed age of superannuation for
teachers in State Aided Non-Government
Secondary Institutions.

10. According to the Government
Order dated 10.08.1978, teachers willing to
opt for gratuity, were required to give their
options in a prescribed proforma, in
accordance with a Niyamawali which was
required to be prepared by the Director of
Education and publicized with the approval
of the State Government as would be
evident
from
paragraph
4
of
the
Government Order.

11. The Niyamawali known as "राज्य
सहायर्ा प्राप्त उच्चर्र माध्यगमि गवद्यालयों िे
अध्यापिों
िी
मृत्यु
र्था
सेवावृग गत्ति
आनुर्ोगषि िी गनयमावली" was prepared by
the
Director
of
Education,
as
comprehended by Paragraph 4 of the
Government Order dated 10.08.1978, was
published/issued/notified vide Government
Order dated 29.08.1981.

12. The Rules of 1981 however
provided that option for inclusion in the
rules would be required to be made by
existing teachers in service within a period
of six months from the date of notification
of the Rules and subsequent appointees
were required to give their option within a
period of two years from entering into
service. Rule 4 of the Rules of 1981 issued
on 29.08.1981 specifically provided that a
teacher in service was required to give an
option of continuing in service either up-till
the age of 58 years or extended service
upto 60 years. The benefit of the Gratuity
Scheme was available only to those
teachers
who
gave
an
option
to
superannuate at the age of 58 years. Rule 4
of the Rules of 1981 also provided that
option once given would be deemed to be
final in nature.

13. Subsequent to the aforesaid Rules
of 1981, the Government issued order dated
06.07.1982 indicating that the time limit of
six months provided earlier for giving
option to existing teachers was inadequate
and therefore a further time limit up-till
31.12.1982 was provided for giving of
option. Thereafter, Government issued
9 All. Guru Charan Vs. State of U.P. & Ors.
607
another order dated 06.10.1990 in terms of
the earlier Government Orders dated
31.03.1978, 28.07.1978 and 03.11.1978. It
was indicated in the Government Order that
since inadvertently various teachers were
deprived of being included in the Gratuity
Scheme since they were unable to give
their option within the prescribed time
limit,
government
after
consideration
extended the time limit for giving such
option to a further 90 days from the date of
issuance
of
the
Government
Order.
Paragraph 2 of the aforesaid Government
Order provided that in case of teachers who
failed to give their option, it would be
deemed that they had opted to superannuate
at the age of 58 years and therefore would
be covered by the Gratuity Scheme
automatically.
Paragraph
3
of
the
Government Order also provided that the
option would be available also for those
teachers who had already given their
options so that maximum teachers would
come within purview of beneficial scheme.

14.

Subsequent
to
the
said
Government Order, another Government
Order dated 04.11.1991 was issued, again
with regard to providing options for
inclusion under the Gratuity Scheme.
This
Government
Order
provided
amendment of the earlier Government
Order dated 06.10.1990 again extending
the time limit for giving of option. The
order also indicated similar provision of
option being provided by the teachers for
superannuation either at the age of 58
years or 60 years. Subsequent to the said
order, another Government Order dated
18.11.1991 was issued finding that
despite issuance of various Government
Orders on the subject, many teachers had
not been able to exercise their options
and therefore another opportunity was
provided for providing of such options.

15. Considering the Government
Orders dated 06.10.1990 and 04.11.1991
a Division Bench of this Court in the case
of Shri Kamla Sharma Versus Deputy
Director
of
Education
and
another,
Special Appeal No.482 of 1993 held that
options exercised by teachers already
could be changed in terms of the
aforesaid Government Orders. However
another Division Bench in the case of
Prakash Chand Sharma versus Deputy
Direction of Education, Bareilly Region,
Bareilly and another passed in Special
No.2891 of 1995 took a contrary view in
the matter while distinguishing the earlier
Division Bench on facts. However, the
aforesaid contradictory judgments were
thereafter referred for adjudication before
the Full Bench in the case of Smt. Prabha
Kakkar
Versus
Joint
Director
of
Education,
Kanpur
and
others
2000(2)UPLBEC 1378 (Allahabad). The
questions framed before the Full Bench
were whether in terms of the scheme
provided in the Government Orders,
acceptance of option exercised by teacher
and its communication was necessary to
make it final and irrevocable. The
questions framed are as follows:-

1. Whether in the Scheme provided in
the Government Orders dated 10.8.1978.
6.10.1990 and 4.11.1991 and the Rules of
1981 acceptance of the option exercised by
the teacher and its communication was
necessary to make it final and irrevocable?

2. Whether the option exercised by
teacher became final and irrevocable after
it was counter signed by the District
Inspector of Schools?

3. Whether by efflux of long time the
option exercised by teacher in pursuance of
the Government Orders could be legally
deemed to have been accepted and it could
not be changed or revoked?
608 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The Full Bench after considering
aspects of the case, recorded its conclusion
that the act of acceptance of option by the
Deputy Director of Education and its
communication to the employee was
necessary in order to make it final before
which option given by teachers could be
withdrawn. The Full Bench also held that
options once exercised by a teacher could
be deemed to have been accepted but in
view of subsequent Government Order
dated 17.02.1999, teachers of Government
Aided Private Higher Secondary Schools
could change their option within a year
before retirement. However since questions
1 and 2 had already been answered, the
aforesaid question was not specifically
answered since it was not necessary to
decide.

17. The Full Bench noticed the
Government Order issued subsequently
on 17.02.1999 in which it was again
stated by the Government that a number
of teachers in recognized and government
aided colleges have not been able to give
their options and were therefore deprived
of benefit of the Gratuity Scheme. It was
therefore decided by the Government that
such teachers could change their options
already given, up-till 1st of July one year
prior to date of superannuation. The said
proposition
was
reiterated
in
the
Government Order dated 17.11.1999
wherein facility to change their option
already given earlier was also indicated.

18. Consequent thereupon, the
Government Order dated 04.02.2004 was
issued again pertaining to issue of option
to be made by such teachers in view of
the fact that Regulation 21 of the
Regulations
framed
under
the
Intermediate Education Act, 1921 stood
amended with the age of superannuation
of a teacher now being 60 years instead
of 58 years.

19. Mr. Adarsh Singh, learned
counsel for petitioners has submitted that
in all the petitions in the present bunch,
the
predecessor-in-interest
of
the
petitioners who were earlier working as
teachers in State Aided Private Institution
had passed away prior to exercise of their
facility of change in option. It is
submitted that the Government Orders
indicated herein-above and particularly
the Government Order dated 17.02.1999
have been issued in terms of paragraph
20 of the Rules of 1981 which grant
power upon the Government to issue
necessary orders to remove any difficulty
or confusion in the grant of benefits of
gratuity to such teacher. As such, it is
submitted that once power to remove
difficulties has already been conferred
upon the State Government by statutory
rule itself, there was no occasion for the
State Government to have first amended
the rule and in such cases, the issuance of
various Government Orders in terms of
paragraph 20 of the Rule of 1981 would
suffice. It is thus submitted that there is
no occasion to hold that statutory
provision by subordinate legislation has
been overridden by administrative order.

20. It has also been submitted by
learned counsel for petitioners that
various government orders and wordings
used therein clearly indicate that the
Government had at all time wished a
beneficial provision upon the teachers
and required as many as possible to be
covered
by
the
aforesaid
Gratuity
Scheme.

21. It has also been contended that
although the Rules of 1981 stipulate that
9 All. Guru Charan Vs. State of U.P. & Ors.
609
option once given could not be changed
thereafter but the government order issued
on the subject clearly indicate that
difficulties were being caused due to such a
strict stipulation having been inserted in the
Rules of 1981 and due to such difficulties
having been caused, were sought to be
removed by the government itself by
issuance of the Government Orders which
were clearly in terms of paragraph 20 of
Rules of 1981. As such it is submitted that
the government was fully empowered to
bring about the change pertaining to
options being given by teachers.

22. With regard to the second
question, it has been submitted that
since the predecessors-in-interest of the
petitioners have passed away prior to
exercise
of
change
in
option
as
stipulated in the Government Order, and
the
scheme
being
beneficial
in
nature,the family members of such
deceased teacher would be entitled to
exercise a change in option particularly
in view of the stand of government
itself indicated in the Government
Order that benefit of said scheme
should be available to as many teachers
as possible.

23. Reliance has been placed by
counsel for petitioners on the Division
Bench judgment of Sri Ranjana Kakkar
versus State of U.P. and others, 2008
(10) ADJ 63(DB), judgment and order
dated 21.06.2022 Shikha Sharma versus
State of U.P. and other and connected
matter Writ A No.14575 of 2021 and
other connected matters, Jagteshwari
Maurya versus State of U.P. and others
Writ Petition No. 2727 (Service Single)
of 2014 and various other judgments to
submit that issue in question already
stands concluded by cited judgments.

24. Learned counsel for petitioners
has also placed reliance on the case of
Usha Rani vs. State of U.P. and others,
Writ A No.17399 of 2019 decided on
07.11.2019
in
similar
facts
and
circumstances.

25. Mr. J.N. Maurya, learned Chief
Standing Counsel assisted by Mr. Chandan
Kumar,
learned
Standing
Counsel
appearing on behalf State has refuted the
submissions advanced by learned counsel
for petitioners with the submission that all
the judgments cited by learned counsel for
petitioners are distinguishable on facts
inasmuch as the specific provisions and
prohibitions of Rules, 1981 had not been
considered in any of them. It has been
further submitted that the Rules of 1981
specifically provided that giving of options
was mandatory upon all the teachers. It is
further submitted that Rule 4 of the Rules
of 1981 had a clear stipulation that option
once given could not be changed. It has
also been submitted that the Government
Orders issued on the subject pertain only
for a change in the option and were
inapplicable in the present cases where
option was not given by the predecessorsin-interest of the petitioners and such
option was therefore deemed in terms of
Rule 3 of the Rules of 1981. It has been
further submitted that even otherwise the
option either given explicitly or deemed to
have been given could not have been
changed and therefore there was no
occasion for any confusion which would
require removal under Rule 20 of the Rules
of 1981 and as such the Government
Orders on the subject are inapplicable upon
the petitioners.

26. It has been further submitted that
even otherwise option once exercised by
the predecessor-in-interest of the petitioners
610 INDIAN LAW REPORTS ALLAHABAD SERIES
could have been changed only by such
predecessor-in-interest being the teachers
who were duly appointed. It is submitted
that in none of the Government Orders, is
any provision for family members of such
teachers to exercise any option of revision
particularly when the teacher concerned
himself did not require any change in the
option either given explicitly or deemed.

27. He has submitted that it is settled
principle of law, if a statute provides
something to be done in a certain manner
then the thing has to be done in that very
manner; from the bare perusal of the
aforesaid Rules (emphasis on Rule 4), a
teacher of a State Aided Non-Government
Institution had to exercise an option to
choose the date of his/her superannuation
as it was, as per Chapter III Regulation 21
of Intermediate Education Act, 1921; either
at the age of 58 years or 60 years and on
the basis of this exercise of option, his or
her retiral benefits were to be determined.

28. It has also been submitted that the
submission
of
learned
counsel
for
petitioners that vide Government Order
dated 06.10.1990 read with Government
Order dated 04.11.1991, successors of the
deceased had an option to revoke the last
exercise option is in-correct since the
Government Order dated 06.10.1990 was
issued in continuation of Government
Orders dated 31.03.1978, 28.07.1978 and
03.11.1978, which did not pertain to death
come retirement gratuity.

29. Submission is that Paragraph 2 of
the Government Order dated 06.10.1990 no
doubt, engendered some confusion due to
ambiguous
and
incongruous
words
employed therein. The tenor of the
Government
Order
however,
unambiguously indicates that it was not
intended to confer any right in favour of a
teacher, to withdraw the option already
exercised
by
him
for
gratuity
and
countersigned/accepted by the Competent
Authority under and in accordance with the
Government Order dated 10.08.1978 read
with
the
Niyamawali
issued
vide
Government Order dated 29.08.1981.

30. Learned counsel has also drawn
attention to language of Government Order
dated 17.02.1999 which states that an
incumbent (teaching staff) can change its
last exercised option on or before 1st July
of the year in which he is superannuating
(as per his last exercised option). If this
thing is allowed then an incumbent who has
exercised his option to superannuate at the
age of 60 years (which was at that time
before amendment), can he be allowed to
change his option on attaining the age of 59
years (which was at that time before
amendment), since there were only two
options which an incumbent had to choose
with regard to age of superannuation and
those were 58 and 60 years. Dealing with
this type of situation a Division Bench of
this Hon'ble Court, in the case of State of
U.P. V. Prabha Shukla, Special Appeal (D)
No.1168 of 2020 has held that an
incumbent can exercise his/her option to
change his or her earlier option before
attaining the age of 58 years only.

31. Learned counsel for respondents
have also placed reliance on various
judgments which shall be discussed hereinafter.

32. Question No.1. Upon consideration of
submissions advanced by learned counsel
for parties and perusal of material available
on record, it is evident that Government
itself was cognizant of disparity of services
between teachers employed by Private
9 All. Guru Charan Vs. State of U.P. & Ors.
611
Aided Institutions and those employed in
Government Colleges or schools. To that
effect and for removal thereof, the Rules of
1964 were notified which automatically
became applicable upon all the teachers in
service at that time. Evidently there was no
requirement of any option to be exercised
by any of the teachers. It was only with the
advent
of
Rules
of
1981
that
the
proposition of teachers giving an option
was formulated with the provision that the
benefits of Gratuity Scheme would be
applicable only upon those teachers who
would give an option to superannuate at the
age of 58 years. The natural corollary of the
aforesaid proposition was that in case of
teachers exercising their right to continue
in service up-till the age of 60 years, the
benefit of gratuity would be unavailable
since they would be getting extra salary for
the two years of service rendered thereafter.

33. A perusal of the wordings of
various Government Orders makes it
evident that the government itself was quite
anxious regarding the applicability of the
Gratuity Scheme upon as many teachers as
possible; clearly the scheme was in the
nature of a beneficial provision provided by
the State Government to such teachers.

34. The issue of whether the
prohibition indicated in the Rules of 1981
regarding change in option can be done
away with by means of Government Orders
without effecting any amendment in the
Rules of 1981 would be required to be
considered.

35. The Rules of 1981 have been
effected since 30.06.1978. Rule 11 of the
aforesaid Rules clearly stipulate an option
to be given by a teacher for superannuation
either at the age of 58 years or continuance
in service up-till the age of 60 years. Rule
20 of the Rules of 1981 clearly stipulate
that government would be empowered to
issue various orders for complete and
effective implementation of the Gratuity
Scheme as notified by the Rules of 1981 in
case there is any difficulty or confusion
with regard to such implementation.

36. In all the Government Orders
indicated
herein-above,
it
has
been
indicated that effective implementation of
the Gratuity Scheme could not be made due
to non exercise of option by most of the
teachers. The Government Orders also
indicate that option could not be exercised
by the majority of teachers due to certain
confusion or administrative laxity. Time
and again Government Orders have been
issued as indicated herein-above extending
the limitation for exercise of option to be
included under the Gratuity Scheme.

37. In paragraph 44 of the counter
affidavit filed by the State, it is itself
admitted that the Government Order dated
06.10.1990 engendered some confusion
due to ambiguous language employed
therein.

38. Clearly the Government itself
envisaged the scheme to be beneficial in
nature. A reading of not only the Rules of
1981 but the various Government Orders
on the subject also clearly indicate that
concept of death-cum-retirement gratuity
was required to be implemented upon as
many teachers as possible in order to
provide them benefit of a beneficial
scheme. The government itself appears to
be quite anxious that the Gratuity Scheme
should be made applicable upon as many
teachers as possible.

39. A conspectus of the Rules and
Government
Orders
issued
by
State
612 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly the Rules of 1964, 1981 and
various Government Orders on the subject
are
all
indicative
of
the
fact
that
Government itself realized the serious
disparity in service benefits pertaining to
teacher
employed
in
Private
Aided
Institutions viz-a-viz those employed in
Government Institutions and a conscious
effort was made by the Government at all
times to remove such disparity. From the
Government Orders issued in 1978 also it is
evident that not only disparity pertaining to
gratuity but to other pensionary benefits
was also sought to be removed. Although
the Rules of 1964 became automatically
applicable
upon
teachers
of
Private
Institutions but the Rules of 1981 took a
divergent
stand
with
such
teachers
requiring to give their options either to
continue in service uptill the age of 58
years or the extended period of 60 years
with the benefit of death-cum-retirement
scheme being applicable only in case of
continuation in service uptill the age of 58
years.

40. The aspect of such option was
enforced for the first time by means of
Rules of 1981 with Rule 3 requiring such
an option within a period of six months
from the teachers already in service and
rule 4 requiring such an option from
subsequent appointee within a period of
two
years
from
the
date
of
regularization/confirmation in service. The
said rule also indicated that options once
given would be considered to be final.

41. As such submission of learned
counsel
for
respondents
is
that
the
prohibition indicated in Rule 4 of the Rules
of 1981 would be construed to be final in
nature under which an option once given or
deemed to have been given cannot be
changed. It has therefore been submitted
that such a prohibition indicated in the
Rules cannot be construed to have been
waived
by
means
of
administrative
Government Orders.

42. So far as aforesaid submission is
concerned, it is evident that Rule 20 of the
Rules of 1981 clearly stipulates that the
Government would have power to issue
directions to remove any difficulty or
confusion with regard to implementation of
the said Rules. The said Rule is clearly an
exception to the prohibition indicated in
Rule 4 of the Rules of 1981 and
specifically
empowers
the
State
Government to issue necessary directions
for removal of such difficulty or confusion.

43. A perusal of the Government
Orders issued subsequent to the Rules of
1981 enhancing the time limit for providing
of options clearly state repeatedly that the
aforesaid prohibition is creating a difficulty
in smooth implementation of the beneficial
concept of death-cum retirement gratuity.
The respondents themselves have in their
counter affidavit admitted the fact that there
was
confusion
with
regard
to
implementation of the Government Order
dated 06.10.1990. Seen in that light, it is
apparent
that
once
statutory
rules
themselves provide an exception clause to
the prohibitory nature of a previous
paragraph or rule, such subsequent clause
of the Rule can be construed to be an
explanation to the mandatory prohibitory
clause. Seen from that view, it is clear that
Rule 20 of the Rules of 1981 is more in the
nature of an explanation/exception to the
prohibitory clause of Rule 4 of the Rules of
1981.

44. Since the various Government
Orders issued subsequent to the notification
of Rules of 1981 repeatedly indicate that
9 All. Guru Charan Vs. State of U.P. & Ors.
613
they are being issued in order to remove
doubt
and
confusion
regarding
implementation
of
the
death-cumretirement
gratuity
scheme,
such
Government Orders can be deemed to have
been issued in terms of Rule 20 of the
Rules of 1981.

45. It is also relevant that by means of
Government Order dated 17.02.1999, it has
been indicated that due to unavoidable
circumstances, teachers of Private Aided
Institutions were unable to provide an option
in terms of Government Orders dated
06.10.1990 and 04.11.1991 and therefore it
had been provided that due to constant
demand for providing such facility, the State
has taken a decision that option once earlier
given could be changed by a teacher of such
an institution within one year prior to his date
of superannuation. The said Government
Order along with the one issued subsequently
on 17.11.1999 provided a change in the
option granted earlier. The said Government
Order is in continuation of the Government
Order dated 06.10.1990 which in paragraph 3
states that the facility of option would be
available also in case of a teacher who had
already earlier given such an option.

46. Learned counsel for respondent
State has submitted that even if assuming that
the option once given could have been
changed in terms of the Government Orders
but such a facility even then would be
available only to those teachers who had
specifically given their options in terms of
provisions of Rules of 1981 and would not be
applicable in those cases where the options
were not explicitly given but was deemed.

47.

With
regard
to
aforesaid
submission, the wordings of Rules 3 and 4
conjointly of the Rules of 1981 makes it
apparent that although specific option was
required to be exercised by the teachers
within stipulated time period but such an
option was also deemed in case it was not
given within the stipulated time period. The
natural corollary of the aforesaid conditions
would be that an option of such a teacher
would be deemed in case it is not explicitly
given. Thus option stands exercised in any
case.

48. Evidently, the provisions of Rule
4 of 1981 specifically with regard to
deeming clause excluded a number of
teachers which did not solve the problem of
disparity between teachers appointed in
Private Aided
Institutions
and
those
working in Government Institutions and as
such the Government felt, as evidenced in
provisions of various Government Orders
that the same did not extend the beneficial
provisions which was the primary concern
of the Government. As per wordings of
subsequent Government Orders, this was
the reason for giving an opportunity to
change the option once earlier given.

49. From a perusal of the Rules of
1964 read with Rules of 1981 and various
Government Orders on the subject, it is
evident
that
the
provisions
of
implementation of death-cum-retirement
gratuity upon such teachers employed by
Private Aided Institutions was a beneficial
provision notified for the purpose of
inclusion of as many teachers as possible in
the Gratuity Scheme.

50. The Full Bench in the case of Prabha
Kakkar (supra) has also answered the
question no.1 to the effect that the act of
acceptance of option by the Deputy
Director
of
Education
and
its
communication to the employee was
necessary in order to make it final. It was
further held that counter signature of
614 INDIAN LAW REPORTS ALLAHABAD SERIES
District Inspector of Schools on such
option could neither be taken as acceptance
nor fully attached any kind of finality. As
such, it can be discerned that the Full
Bench has also taken the view that option
once given in terms of the Government
Orders dated 10.08.1978, 06.10.1990 and
04.11.1991 even after the advant of Rules
of 1981 can be changed. It was upon
answering of first question that the Full
Bench concluded that questions pertaining
to irrevocability of option exercised by a
teacher and its option to be changed or
revoked, was not required to be answered.

51. Evidently, the Full Bench having
considered
not
only
the
aforesaid
Government
Orders
but
also
the
Government Order dated 17.02.1999 has
also come to the conclusion that no finality
could be attached to an option once given
by a teacher and such an option once given
can be changed or revoked subsequently as
well as.

52. The aforesaid aspect has also been
considered by a Coordinate Bench of this
Court in the case of Sushila Yadav versus
State of U.P. and other (2021)10 ADJ 235
in which also the entire gamut of
Government Orders and decision on the
point have been considered particularly
with regard to judgment rendered by other
Coordinate Benches in the case of Usha
Rani versus State of U.P. and others; Writ
A No.17399 of 2019, Noor Jahan versus
State of U.P. and others, Writ A No.40568
of 2016 and Smt. Omwati versus State of
U.P. and others Writ A No.8679 of 2018 as
well as in the case of Smt. Mala Tripathi
versus State of U.P.and others. The said
judgment also takes into account the
judgment rendered by Ranjana Kakkar
(supra) and Prabha Shukla (supra). Upon
examination of various aspects, the
judgment in the case of Prakash Chandra
Sharma
versus
Deputy
Director
of
Education, Bareilly Region Bareilly and
others (1997)2 UPLBEC 1155 and in the
case of Division Bench Judgment of State
of U.P. and another versus Shashthi Dutt
Shastri and others, 2017 (Suppl.) ADJ
768(DB). The relevant paragraphs are as
under:

"..........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 aged option. ........"

"...................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.