# Rajeev Kumar and another v. The State of U.P. and others

- **Citation:** (2006) 1 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-03
- **Case number:** Writ Petition No.71469 of 2005
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kumar-and-another-v-the-state-of-u-p-and-others-40736
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act 1921Section 9 (4)- Payment of Gratuity-class
III employees of Private Inter Collegeclaimed for extension of the age of
superanuation from 60 to 62 yearslikewise
the
teachers
of
the
said
colleges-government by Order 29.8.05
rejection the claim-writ of mandamus
can not be issued directly by the courtpetitioner on ground by the statutory
rules framed under U.P. Intermediate
Education-Payment of gratuity being
policy
matter-held-No
case
of
discrimination or arbitrariness make out
for interference under writ jurisdiction.

Held: Para 10

In the instant case, there is nothing on
record to indicate that the petitioner or
such similarly situated employees had
raised any such claim of extension of
benefit of gratuity on the basis of the
logic which the petitioner contends is
applicable in the present case and
contained
in
the
decision
dated
25.8.2005. It appears that the petitioner
and such other employees, who failed to
get their requests accepted by the State
Government
with
regard
to
enhancement
in
the
age
of
superannuation have come up before
this Court straightway for a mandamus
calling upon the State Government to
extend the benefit of gratuity. As already
noticed herein above, the petitioner has
failed
to
make
out
any
case
of
discrimination or arbitrariness so as to
attract the applicability of Article 14 of
the Constitution of India. In view of the
observations made herein above, this
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Court does not find any cause for any
interference.
Case law discussed:
1971 (2) SCC-188

## Text

1 All] Rajeev Kumar and another V. The State of U.P. and others
361
Court
Legal
Services
Committee,
Allahabad.

45. Registry is directed to transmit a
copy of this order forthwith to the learned
district Collector, Bijnor for compliance.

46. The petitioners are charged for
committing
criminal
contempt
on
following charge:-
"Whereas you Shri Rajeev Kumar
and Shri Hem Raj Singh filed Civil Misc.
Writ
Petition
No.71469
of
2005
suppressing the material facts that you
had been awarded the contract which was
cancelled vide order dated 30.06.2005 for
not completing the work in time and filed
the agreement dated 15.04.2005 in the
aforesaid writ petition which is admittedly
forged and fabricated and tried to mislead
the Court in order to obtain a favourable
orders, and thereby committed criminal
contempt of this Court and you are hereby
charged as such."

47. They may file reply to the
aforesaid charge within a period of two
weeks.

48. List the matter before the
appropriate Bench having the jurisdiction
for that purpose on 05.01.2006. On that
date, both the petitioners are directed to
remain present before the said Court.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2006

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 78010 of 2005

Ram Sufal Saroj

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri D.K. Mishra

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921Section 9 (4)- Payment of Gratuity-class
III employees of Private Inter Collegeclaimed for extension of the age of
superanuation from 60 to 62 yearslikewise
the
teachers
of
the
said
colleges-government by Order 29.8.05
rejection the claim-writ of mandamus
can not be issued directly by the courtpetitioner on ground by the statutory
rules framed under U.P. Intermediate
Education-Payment of gratuity being
policy
matter-held-No
case
of
discrimination or arbitrariness make out
for interference under writ jurisdiction.

Held: Para 10

In the instant case, there is nothing on
record to indicate that the petitioner or
such similarly situated employees had
raised any such claim of extension of
benefit of gratuity on the basis of the
logic which the petitioner contends is
applicable in the present case and
contained
in
the
decision
dated
25.8.2005. It appears that the petitioner
and such other employees, who failed to
get their requests accepted by the State
Government
with
regard
to
enhancement
in
the
age
of
superannuation have come up before
this Court straightway for a mandamus
calling upon the State Government to
extend the benefit of gratuity. As already
noticed herein above, the petitioner has
failed
to
make
out
any
case
of
discrimination or arbitrariness so as to
attract the applicability of Article 14 of
the Constitution of India. In view of the
observations made herein above, this
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Court does not find any cause for any
interference.
Case law discussed:
1971 (2) SCC-188

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the Respondent Nos. 1 and 2.

2. The petitioner has already
attained the age of superannation and has
retired from his services as a class III
employee in Vidyawati Darabary Balika
Inter
College,
Allahabad,
w.e.f.
31.12.2005. The present petition has been
filed
by
him
for
a
mandamus
commanding the respondents to extend
the
benefits of gratuity and other
consequential benefits which are available
to
the
employees
of
the
State
Government.

3. Learned counsel for the petitioner
Sri D.K. Mishra contends that the
petitioner has a legitimate expectation of
receiving the aforesaid benefits in view of
the
position
taken
by
the
State
Government in its order dated 29.8.2005,
Annexure-3 to the writ petition. The said
order
was
passed
by
the
State
Government rejecting the claim of the
ministerial
staff
association
of
Intermediate Colleges governed by the
provisions of the U.P. Intermediate
Education Act whereby the claim of
enhancement of the age of superannuation
at par with the Teachers of such
institution was found to be untenable and
accordingly, the State Government for the
reasons recorded in the said order refused
to extend the benefits of class III
employees from 60 to 62 years.

4. Learned counsel for the petitioner
contends that while recording reasons in
the said order, the State Government has
detailed the consequences that the State
Government may have to face on account
of such enhancement keeping in view the
fact that such a demand would also be
raised by the government employees of
the same category. Sri Mishra contends
that since the State Government was
comparing the status of the petitioner and
other such similarly situated employees
with that of the State Government
employees, therefore, while refusing to
grant the claim of enhancement, the State
Government ought to have considered the
extension of such other benefits which
were
being
already
given
to
the
government employees and teachers of
secondary institutions. He has pointedly
raised the issue of extending the benefit of
payment of gratuity, which according to
him, was being made available to the
government employees and was also
being made available to the Teachers of
the institution on exercising their option
to retire at the age of 58 years. He
contends that upon the enhancement of
the age of retirement of Teachers to 62
years, the provisions of gratuity stands
automatically extended to them as well
and they now have the option of retiring
at the age of 60 years with gratuity. In this
view of the matter, the petitioner contends
that the benefits of gratuity should be
extended on the same parity of reasoning
to the petitioner and the similarly situated
employees.

5. Sri Mishra has further invited the
attention of the Court to similar benefits
being extended to the class III employees
of
Junior
High
Schools
by
the
Government order dated 25.8.2005, copy
whereof has been appended as Annexure-
1 All] Ram Sufal Saroj V. State of U.P. and another
363
6 to the writ petition. He contends that if
the class III employees of Junior High
Schools are being given the benefit of
gratuity together with the benefit of
enhancement of retirement of age at 60
years, the petitioner who is also a class III
employee should be extended the same
benefit.

6. Learned Standing Counsel on
behalf of the Respondents has urged that
since the
petitioner
or such other
employees do not form the same class,
therefore,
the
petitioner
cannot
be
extended the same benefit and the
extension of benefit of gratuity is a matter
of policy which cannot be thrust upon the
State Government by way of judicial
intervention.

7. Having heard the learned counsel
for the parties, in order to invoke the
applicability of Article 14 what has to be
established is that the petitioner belongs
to the same class of employees, who have
been extended the benefits which are
being claimed by the petitioner. The Apex
Court in the case of Md. Usman and
others Vs. State of Andhra Pradesh and
others, (1971) 2 SCC 188, has held that
doctrine of equality is attracted not only
when equals are treated as unequals but
also when unequals are treated as equals.
It has further been held that a statutory
provision or Act of an authority may
offend Article 14 of the Constitution, both
by-finding differences where there are
none and by making no difference where
there is one.

8. The payment of gratuity is a
matter of service condition to be laid
down by the State Government or the
employer
concerned
extending
the
benefits of such payment keeping in view
the service conditions of an employee,
who is governed by a particular set of
statutory Rules. In the instant case,
services of the petitioner are governed by
a set of Statutory Rules framed under the
U.P. Intermediate Education Act and the
Regulations framed thereunder. The said
regulations have been framed under the
exercise of powers conferred on State
Government under the U.P. Intermediate
Education Act. The legislature did not
itself make any provision for payment of
gratuity under the U.P. Intermediate
Education
Act
to
such
employees.
However, by issuing Government Orders
under Section 9 (4) of the U.P.
Intermediate
Education
Act,
1921,
directives were issued from time to time
extending the service benefits to the
employees
of
such
privately
aided
institutions. The payment of gratuity and
benefits thereof extended to Teachers
only, was made available under the
exercise of such powers. Teachers by
themselves form a different class. The
aforesaid issue need not detained this
Court
for
deliberation
any
further.
Dealing with similar contentions, this
Court in the case of Ram Mohan
(Annexure-2 to the writ petition) came to
the conclusion that class III employees
and Teachers do not form the same class
and, as such, it would not be possible to
test the case on the touch stone of Article
14. The aforesaid judgment clearly finds
support from the principle laid down by
the Apex Court in the case of Md. Usman
quoted herein above. Since the petitioner
who a is class III employee and does not
belong to the class of Teachers, therefore,
the argument that since such benefits were
extended to teachers should also be made
available to the petitioner, does not hold
water.
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

9. The next illustration cited by the
petitioner was that of class III employees
of Junior High Schools and to which the
attention of the Court was invited,
wherein it is stated that the benefit of
extension of services to the age of 60
years will also include the benefit of
payment of gratuity to the class III
employees of Junior High Schools. Again
at this juncture, it would be useful to
reiterate that class III employees of Junior
High Schools are governed by a different
set of Rules. Their employment and terms
and conditions of service are not similar
to that of the petitioner whose services are
governed under the provisions of U.P.
Intermediate
Education
Act
and
Regulations
framed
therein.
It
is
something
different
that
both
the
petitioner and the employees of Junior
High School are performing the job of a
clerk, but by mere performance of duties
which the petitioner claims to be of a
similar nature, would not by itself be the
basis of a legitimate expectation to claim
similar benefits. Legitimate expectation is
to be grounded on the basis of some
existing rights or on the basis of some
lawful legitimate undertaking given by
the employer. In the instant case, the State
Government has neither framed any Rules
nor has it extended any such benefits or
given an undertaking to the petitioner or
such similarly situated employees on the
basis whereof the petitioner can claim any
legitimate expectation. The contention on
behalf of the petitioner that legitimate
expectation arises out of the benefits
being given to employees of Junior High
School cannot be accepted. As already
noticed herein above, they are employees
governed by a different set of Rules. The
Rules by which the employees of a Junior
High School are governed cannot be
deployed for any support in order to
extend the benefit of gratuity to the
petitioner.

10. The matter of payment of
gratuity involves a policy decision to be
taken by the State Government which
entails fiscal burden, such matters should
not be ordinarily tinkered with by the
Courts inasmuch as the question of
payment to be made out of State funds
and exchequer have to be determined on
the basis of deliberations to be made by
the State Government in order to ensure
any such benefit as claimed by the
petitioner. In the instant case, there is
nothing on record to indicate that the
petitioner or such similarly situated
employees had raised any such claim of
extension of benefit of gratuity on the
basis of the logic which the petitioner
contends is applicable in the present case
and contained in the decision dated
25.8.2005. It appears that the petitioner
and such other employees, who failed to
get their requests accepted by the State
Government with regard to enhancement
in the age of superannuation have come
up before this Court straightway for a
mandamus
calling
upon
the
State
Government to extend the benefit of
gratuity. As already noticed herein above,
the petitioner has failed to make out any
case of discrimination or arbitrariness so
as to attract the applicability of Article 14
of the Constitution of India. In view of the
observations made herein above, this
Court does not find any cause for any
interference, much less for grant of any
relief as claimed by the petitioner.

11. The writ petition, accordingly,
lacks merit and is hereby dismissed.
Petition dismissed.
---------
ORIGINAL JURISDICTION