# Sushila Yadav v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1405
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** WRIT A No. 9105 of 2021
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushila-yadav-v-state-of-u-p-ors-47540
- **Pages:** 22

## Headnote

A. Service Law - Gratuity - U.P. Basic
Education [Teachers] Service Rules, 1981
- Rules for Grant of Gratuity to the
Teachers
of
Aided
Educational
Institutions: Rule 5, 6, 13; U.P. Basic
Education Provident Fund Rules, 1975;
Rajya
Sahayata
Prapt
Uchchatar
Madhyamik Vidyalayo Ke Adhyapako Ki
Mrityu Tatha Sewa Nivritee Aanutoshik Ke
Niyamawali
(Rules
1981);
U.P.
High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees) Rules, 1971 - Gratuity
cannot be denied in a situation where a
teacher dies prior to reaching the age of
retirement and the death having occurred
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
a year before the age of retirement was
being reached. (Para 37)

The sole question which stands posited is
whether a failure on the part of an employee to
have exercised an option prior to his untimely
demise would result in his heirs being deprived
of the right to claim gratuity. (Para 7)

a) From the recordal of facts it is evident
that
insofar
as
primary
educational
institutions were concerned, no statutory
provision commanded the submission of
options in order to be entitled to receive
gratuity. The concept of submission of options
came to be introduced by virtue of the GO of 23
November 1994 and those which came to be
subsequently issued and have been noticed. The
Court also takes cognizance of the provisions of
the GO of 10 June 2002 though ostensibly made
in the context of change of options were what
was consistently followed by the Board in
respect of teachers who came to enter service
post 1994 and is adhered to even today. (Para
29)

b) Rules for Grant of Gratuity to the
Teachers
of
Aided
Educational
Institutions (1964 Rules): Rule 13 - Rule
13 of the 1964 Rules dealing with the
issue
of
nomination
also
made
provisions for a contingency where a
teacher had failed to make a nomination
prior to his death. Rule 13 dealing with that
eventuality provided that in the event of no
nomination having been made it would be the
Director of Education who was designated to
be the final authority to adjudge who would
be entitled to the amount of gratuity. That
award as made by the Director was to be
binding
on
all
parties.
The
aforesaid
provisions made in Rule 13 are liable to be
read in conjunction with Rule 6 which
provided that a teacher covered by the 1964
Rules would be obliged to make a nomination
upon completion of three years of continuous
service indicating the names of the members
of his family who would have the right to
receive gratuity upon his death. These
provisions also indicate that a right of a family
member to receive gratuity consequent to the
death of a teacher covered by the 1964 Rules
was not completely effaced or lost. (Para 30)
c) Comparison between 1964 Rules and
1981 Rules - The position of teachers
working in Higher Secondary institutions
and governed by the provisions of the
1971 Act came to be drastically alter

## Text

_Characters 0–39,954 of 74,692. This is a partial read: ask again with offset=39954 for what follows._

9 All Sushila Yadav Vs. State of U.P. & Ors.
1405
legislature to accord such power under the
revision with a rider is to ensure that there
may not be errors in the order passed by the
officer
subordinate
to
the
revisional
authority and the order may not be
prejudicial to the interest of revenue. On the
above parameters there is hardly any scope
for taking another view. Admittedly, the
order impugned has been passed in absence
of record and the revenue authority has
proceeded to endorse on the dotted line,
which
has
been
submitted
by
the
subordinate officer. Even though, the
appellate order was appealable, which
clearly reflects that said action is contrary to
the procedures contained therein. The order
must
be
supported
by
reasons
but
unfortunately
the
revisional
authority/Commissioner did not choose to
give reasons in support of order passed by
him. This was in plain disregard to the
requirement of law. The said order does not
satisfy the requirement of law. Therefore,
the said action cannot be accepted.

62. For the reasons above, the
impugned order dated 26.3.2021 cannot
sustain and accordingly, the same is set aside.

63. Consequently, the writ petition
stands allowed.

64. Let original record be returned to
Shri B.K. Pandey, learned Additional Chief
Standing Counsel appearing for the State
respondents.

65. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the petitioner
alongwith a self attested identity proof of the
said
person
(preferably
Aadhar
Card)
mentioning the mobile number to which the
said Aadhar Card is linked.

66. The concerned Authority/Official
shall verify the authenticity of such
computerised copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------

(2021)09ILR A1405
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

WRIT A No. 9105 of 2021
with
WRIT A No. 10581 of 2018
with
WRIT A No. 11015 of 2021

Sushila Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Kesharwani

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Singh, Sri Awadesh
Kumar

A. Service Law - Gratuity - U.P. Basic
Education [Teachers] Service Rules, 1981
- Rules for Grant of Gratuity to the
Teachers
of
Aided
Educational
Institutions: Rule 5, 6, 13; U.P. Basic
Education Provident Fund Rules, 1975;
Rajya
Sahayata
Prapt
Uchchatar
Madhyamik Vidyalayo Ke Adhyapako Ki
Mrityu Tatha Sewa Nivritee Aanutoshik Ke
Niyamawali
(Rules
1981);
U.P.
High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees) Rules, 1971 - Gratuity
cannot be denied in a situation where a
teacher dies prior to reaching the age of
retirement and the death having occurred
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
a year before the age of retirement was
being reached. (Para 37)

The sole question which stands posited is
whether a failure on the part of an employee to
have exercised an option prior to his untimely
demise would result in his heirs being deprived
of the right to claim gratuity. (Para 7)

a) From the recordal of facts it is evident
that
insofar
as
primary
educational
institutions were concerned, no statutory
provision commanded the submission of
options in order to be entitled to receive
gratuity. The concept of submission of options
came to be introduced by virtue of the GO of 23
November 1994 and those which came to be
subsequently issued and have been noticed. The
Court also takes cognizance of the provisions of
the GO of 10 June 2002 though ostensibly made
in the context of change of options were what
was consistently followed by the Board in
respect of teachers who came to enter service
post 1994 and is adhered to even today. (Para
29)

b) Rules for Grant of Gratuity to the
Teachers
of
Aided
Educational
Institutions (1964 Rules): Rule 13 - Rule
13 of the 1964 Rules dealing with the
issue
of
nomination
also
made
provisions for a contingency where a
teacher had failed to make a nomination
prior to his death. Rule 13 dealing with that
eventuality provided that in the event of no
nomination having been made it would be the
Director of Education who was designated to
be the final authority to adjudge who would
be entitled to the amount of gratuity. That
award as made by the Director was to be
binding
on
all
parties.
The
aforesaid
provisions made in Rule 13 are liable to be
read in conjunction with Rule 6 which
provided that a teacher covered by the 1964
Rules would be obliged to make a nomination
upon completion of three years of continuous
service indicating the names of the members
of his family who would have the right to
receive gratuity upon his death. These
provisions also indicate that a right of a family
member to receive gratuity consequent to the
death of a teacher covered by the 1964 Rules
was not completely effaced or lost. (Para 30)
c) Comparison between 1964 Rules and
1981 Rules - The position of teachers
working in Higher Secondary institutions
and governed by the provisions of the
1971 Act came to be drastically altered
upon the promulgation of the 1981 Rules.
This the Court observes since Rule 3 of the 1964
Rules originally covered even those teachers
who were working in Higher Secondary Schools
and Degree colleges. Upon the promulgation of
the 1981 Rules, teachers working in those
categories of institutions came to be exorcised
from the ambit of the 1964 Rules.

However, the distinguishing feature of the
scheme applicable to teachers of primary
educational institutions was that a failure
to submit an option was never considered
as a fait accompli. (Para 32)

In any case they did not introduce or prescribe
a corresponding connection between entry into
service and the submission of an option. In fact,
and as was conceded on behalf of the State,
teachers had been conferred the right to
exercise that option up to one year prior
to reaching the age of retirement. The
only additional stipulation that was placed
was of that option being submitted before
1 July of the academic year in which the
teacher was to retire. The absence of a
negative stipulation and a prescription
specifying the adverse consequences of
inaction clearly operates in favour of
teachers and the petitioners here. The
Court also bears in mind the undisputed position
on facts which has emerged of teachers being
permitted to submit their options prior to
attaining the age of superannuation and latest
by 1st of July of the academic year in which
they were to attain the age of retirement. Once
that is conceded to be the accepted procedure
consistently followed, the Court fails to find any
justification to hold teachers to be under an
obligation to submit an option immediately upon
entry into service. (Para 32)

d) GO dates 23 November 1994 does not
confer parity upon teachers of primary
educational
institutions
and
their
counterparts in secondary medium schools
and cannot be read as attracting the 1981
Rules. The expression "at par with" as
9 All Sushila Yadav Vs. State of U.P. & Ors.
1407
employed in that Government Order does not
lend strength to the contention as urged either
especially when a careful and holistic reading of
that Order establishes that the aforesaid
expression was used only to underline the fact
that teachers of aided secondary educational
institutions stood at par with other employees of
the State Government for the purposes of
gratuity. (Para 33)

e) The petitioners cannot be denied the
benefit of gratuity - Death being an
unforeseen circumstance and an event
which is clearly unpredictable could not
have resulted in family members of those
teachers being denuded of the right to
claim gratuity. Undisputedly the teachers and
employees in the batch of these writ petitions
died
prior
to
attaining
the
age
of
superannuation. As per the stand and practice
of the State consistently followed, they had a
right to exercise an option up to one year prior
to their retirement and by the first of July of the
academic year in which the date of retirement
was being reached. The respondents could not
have presumed that a teacher had decided that
he would continue upto 60 or 62 years. (Para
34)

It
would
be
wholly
erroneous
and
irrational to hold that a teacher was liable
to submit an option prior to his demise.
The submission of an option to receive
gratuity cannot legally be recognised as
being attached to a circumstance which by
its
very
inherent
character
is
unforeseeable and incapable of being
prophesized. Teachers while serving under the
respondents would be presumed to be aware of
the practice and requirement of submitting the
requisite option one year prior to attaining the
age of retirement coupled with the additional
burden of ensuring that the option was
submitted not later than the 1st of July of the
academic year in which the teacher was to
retire. If that was the recognised methodology
consistently followed by the respondents, it
would be wholly incongruous to recognise a
responsibility placed upon teachers to submit
that option prior to their untimely demise. On a
more fundamental plane it must necessarily be
stated that the State has failed to place for the
consideration of the Court any prescription,
statutory or otherwise, which may have drawn
an inviolable line in time which when crossed
was envisaged to denude a teacher of his right
to claim gratuity. (Para 35)

It is manifest that the decision in Usha
Rani appears to have rightly taken the
position that gratuity cannot be denied in
a situation where a teacher dies prior to
reaching the age of retirement and the
death having occurred a year before the
age of retirement was being reached. (Para
37)

f) It may only be observed that the State
would have been justified in refusing a
claim for gratuity in case a teacher had
continued
in
service
beyond
the
stipulated
age
of
retirement
and
thereafter died while in service. For
instance, in case a teacher has continued
beyond the age of 58 or 60 years without
exercising the requisite option, he would be
deemed to have taken and derived benefit of
the extended age of retirement. While serving
under the respondents in that extended tenure
the teacher may have been presumed to have
decided to continue in service till the age of 60
or 62 years. However, in a case where death
occurs prior to the teacher attaining the age of
58 or 60 years cannot reasonably merit an
assumption being made that such a teacher
wanted to continue up to the extended and
increased age of retirement. (Para 36)

Writ petitions allowed. (E-4)

Precedent followed:

1. Usha Rani Vs St. of U.P. & 6 ors., Writ-A No.
17399 of 2019 decided on 12.12.2019 (Para 4)

2. Noor Jahan Vs St. of U.P. & 4 ors., Writ-A No.
40568 of 2016 decided on 04 January 2018
(Para 4)

3. Smt. Omwati Vs St. of U.P .& 3 ors., Writ-A
No. 8679 of 2018 09 March 2s018 (Para 4)

4. St. of U.P. Vs Usha Rani, Special Appeal
Defective No. 40 of 2021 (Para 5)

Precedent distinguished:
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Prakash Chandra Sharma (Since deceased)
through L.R. (Wife) Vs Dy. Director of Education
Bareilly Region, Bareilly & ors. (1997) 2 UPLBEC
1155 (Para 22)

2. St. of U.P. & ors. Vs Shashthi Dutt Shastri &
ors. 2017 (Suppl.) ADJ 768 (DB) (Para 24)

3. Prakash Chandra Sharma Vs Dy. Director of
Education Bareilly Region, Bareilly 1995 (2)
E.S.C. 378 (All) (Para 25)

(Delivered by Hon'ble Yashwant Varma, J.)

1.

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

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

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

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

"Similar issue was considered by
this Court in the matter of Noor Jahan
(Supra) in which this Court vide order
dated 04.01.2018 has clearly held that
Government Order dated 16.09.2009 does
not provide any bar for payment of gratuity
in case petitioner's husband had not given
option for retirement at the age of 60 years.
Relevant paragraphs of the said judgment is
quoted below:-
9 All Sushila Yadav Vs. State of U.P. & Ors.
1409

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

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

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

Government Order dated 16th
September, 2009 provides for revision of
pension and other retiral benefits to the
retired employees of the department of
basic education. This Government Order
grants higher benefits w.e.f. 1.1.2006.
Clause 4(1) of the Government Order
provides that pension would not be payable
to
those
employees,
who
have
not
completed 10 years of qualifying service,
but the employees who retire upon
attaining the age of superannuation of 60
years would be entitled to gratuity and
other service benefits. The Government
Order does not restrict payment of gratuity
to an employee, who is otherwise covered
under the scheme just because he has not
attained the age of 60 years. Reference to
age of 60 years is due to fact that age of
superannuation under the rule is otherwise
60 years. Position has otherwise been
clarified by Clause 5 of the Government
Order, which provides that gratuity would
be payable at the age of 60 years or upon
death. The respondents, therefore, were not
justified in rejecting petitioner's claim for
payment
of
gratuity,
in
terms
of
Government Order dated 16.9.2009. The
impugned action, therefore, cannot be
sustained.
Order
dated
8.7.2016
is,
accordingly, quashed.

A direction is issued to the
respondents to compute the amount payable
to petitioner's husband towards gratuity in
terms of the scheme and release the same,
within a period of three months from the
date of production of certified copy of this
order. The petitioner shall also be entitled
to interest at the rate of 8% per annum,
from the date of filing of the application till
the amount is actually disbursed.

Writ petition is, accordingly,
allowed."

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

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

This aspect has been dealt with
by Division Bench of this Court in Special
Appeal (Defective) No.430 of 2016, Smt.
Nazma Khatoon Vs. State of U.P. and
others where a learned Single Judge had
rejected the prayer for interest on delayed
payment of gratuity. However, the Division
Bench opined that interest is a necessary
corollary to the retention of money by
another person. It is neither compensatory
nor penal in nature. It was so held, upon an
earlier Division Bench decision in Smt.
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
Ranjana Kakkar W/O Late Prof. Amarnath
Kakkar Vs. State of Uttar pradesh and
others, 2008(10) ADJ 63 (DB).

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

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

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

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

Following the decision rendered in
the judgment of Noor Jahan (Supra) as well
as Smt. Omwati (Supra), matter of Smt.
Brijesh (Supra) for payment of gratuity was
allowed by this Court by quashing the
impugned orders by which gratuity was
denied.

Similar controversy was also
decided by Lucknow Bench of this Court
vide order dated 5.8.2019 passed in the
matter of Smt. Mala Tripathi (Supra) in
which Court has taken a similar view and
held that if husband of petitioner died
before attaining the age of 60 years and has
not given option for retirement at the age of
60 years, gratuity cannot be denied only on
this ground. Relevant paragraph of the said
judgment is quoted below:-

"Heard learned counsel for the
contesting parties and perused the records.

From perusal of the records, it
clearly comes out that the petitioner's
husband died in harness on 26.08.2012
while working as Assistant Teacher in an
aided and recognized institution. It is also
admitted that the family pension has been
paid to the petitioner. The only dispute
revolves around the payment of gratuity to
the petitioner. The ground taken by the
respondents of the petitioner's husband not
having opted for retiring at the age of 60
years which thus entails non-payment of
gratuity to her at the very out set does not
stand to legal scrutiny inasmuch as it is an
admitted case by the respondents also that
the petitioner's husband died in harness on
26.08.2012 despite his actual date of
superannuation being November 2019.
Thus, an employee is only expected to
submit an option prior to his retirement and
not decades prior to his retirement.
However, this aspect of the matter has not
been considered by the respondents and
even the letter of the Institution dated
19.03.2014, a copy of which has been filed
as Annexure-3 to the petition, does not
address the aforesaid issue.

Accordingly, keeping in view the
aforesaid discussions, the order dated
19.03.2014 (Annexure-3 to the petition)
cannot be said to be valid in the eyes of
9 All Sushila Yadav Vs. State of U.P. & Ors.
1411
law. As such, the writ petition deserves to
be partly allowed and is hereby partly
allowed. A writ of certiorari is issued
quashing the order dated 19.03.2014. A
writ of mandamus is issued directing the
respondents to consider the case of the
petitioner for payment of gratuity in
accordance with law and relevant rules
within a period of three months from the
date of receipt of a certified copy of this
order."

Facts of the case and dispute
involved in the present case is squarely
covered by the pronouncements made by
this Court which are referred herein above,
therefore,
under
such
facts
and
circumstances,
impugned
order
dated
30.7.2019 passed by respondent No. 7-
Block
Education
Officer
Block
Kadarchauk, Distruict Badaun is hereby
quashed.

Respondents
are
directed
to
compute the amount payable to the
petitioner's husband towards gratuity in
terms of the scheme and release the same,
maximum within a period of three months
from the date of production of certified
copy of this order. The petitioner shall also
be entitled to interest at the rate of 8% per
annum, from the date of filing of the
application till the amount is actually
disbursed. "

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

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

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

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

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

Accordingly, what we find that
the present case is covered by the judgment
of this court in the case of Smt. Ranjana
Kakkar (Supra). An exception can be
carved only when they continue in service
without withdrawal of option even after the
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
attaining the age of 58 years in a given case
or beyond 60 years in other cases as normal
age of retirement was changed from 58
years to 60 years by the amendment in the
year 2004.

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

This
appeal
is
accordingly,
dismissed."

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

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

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

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

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

(2) "Continuous Service" means
all whole-time service whether temporary,
officiating or permanent, rendered either in
9 All Sushila Yadav Vs. State of U.P. & Ors.
1413
one or more of the State aided educational
institutions of any of the categories
mentioned in Rule 3 and includes all
periods spent on leave on average pay, or
on medical certificate, but it does not
include leave without pay."

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

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

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

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

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

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

"मुझे आपसे यह कहने का ननदेश
हुआ है नक उत्तर प्रदेश बेनसक नशक्षा पररर्द् द्वार
सिंचानलत प्राइमरी एविं जूननयर हाई स्कूलोिं के
नशक्षकोिं को जो लाभत्रयी योजना से अनुशानसत हैं
वतामान ननयमोिं के अधीन जो सेवा ननवृनत्तक लाभ
उपलब्ध हैं वे राजकीय कमाचाररयोिं को अनुमन्य
पेंशन आनद से अत्यल्प हैं, नजससे वे गत कुि
समय से यह मािंग कर रहे थे नक उनकी सेवा
ननवृनत्तक लाभ इस प्रकार स्वीकृत नकये जायें नक
उन्हें राज्य कमाचाररयोिं को अनुमन्य दर पर पेंशन
प्राप्त कर सकें। इस नवर्य पर सम्यिंकल्प से
नवचारोपराि शासन ने यह ननणाय नलया है नक 1
माचा, 1977 को या उसके पचात् सेवा ननवृत्त हुये
या सेवा ननवृत्त होने वाले उि नवद्यालयोिं के
समस्त स्थाई पूणाकानलक तथा ननयनमत नशक्षकोिं
को उसी दर पर पेंशन देय होगी, नजस दर पर
राजकीय नवद्यालयोिं के समान स्तर एविं श्रेणी के
नशक्षकोिं को अनुमन्य है तथा उसका आगणन भी
राजकीय कमाचाररयोिं के नलये लागू प्रनिया के
अनुसार नकया जायेगा। राज्य कमाचाररयोिं को
अनुमन्य पेंशन की दरें सिंलग्नक-1 में अिंनकत है।
यह ननणाय ननम्ननलन्तखत प्रनतबिोिं के अधीन है-

(1)
नशक्षकोिं
को
डेथ-कमररटायरमेन्ट-ग्रेच्यूटी या मृत्यु के पचात् उनके
आनश्रतोिं को पाररवाररक पेंशन देय नहीिं होगी।

(2) सामूनहक जीवन बीमा योजना का
लाभ उन्हें पूवावत् नमलता रहेगा।"

12. Dealing with the issue of
submission of an option that Government
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
Order in paragraph 2 made the following
provisions: -

"2. मुझे आपसे यह भी कहने का
ननदेश हुआ है नक उि योजना के अिंतगात पेंशन
प्राप्त करने के नलए प्रत्येक कमाचारी को इस बात
का नलन्तखत नवकल्प देना होगा नक वह इस योजना
के अधीन पेंशन प्राप्त करना चाहेगा अथवा
शासनादेश सिं0ए-5355/15-3133/1962, नदनािंक
17 नदसबर, 1965 द्वारा प्रसाररत लाभत्रयी योजना
के अिगात पेंशन और उत्तर प्रदेश बेनसक नशक्षा
पररर्द् भनवष्य नननध ननयमावली, 1975 के
अिगात बेनसक नशक्षा पररर्द् का अिंशदान प्राप्त
करेगा। जो अध्यापक नगर महापानलका की सेवा
से हस्तािररत होकर उत्तर प्रदेश बेनसक नशक्षा
पररर्द् की सेवा में आये है और नजन्होिंने लाभत्रयी
योजना के नलये नवकल्प नहीिं नदया है, उन्हे भी इस
बात का नवकल्प देना होगा नक वह इस योजना के
अधीन पेंशन लेना चाहेगे अथवा सबन्तित नगर
महापानलका के नवननयमोिं के अनुसार पेंशन के
लाभोिं का उपयोग करना चाहेंगे। उि नवननयमोिं
के अिगात देय पेंशन के साथ उत्तर प्रदेश बेनसक
नशक्षा भनवष्य नननध ननयमावली, 1975 के अिगात
देय पररर्दीय अिंशदान अनुमन्य नहीिं होगा और
उनके खाते में जो कुि भी पररर्दीय अिंशदान
जमा है, वह सिंचानलत ब्याज सनहत, उपरोि
प्रस्तर-1 (4) में इिंनगत लेखा शीर्ाक में जमा करा
नलया जायेगा। माचा, 1, 1977 के पचात् जो भी
अध्यापक बेनसक नशक्षा पररर्द् द्वारा ननयुि
नकये गये हैं या नकये जायेंगे उन पर यह योजना
अननवाया रुप से लागू होगी और उनसे कोई
नवकल्प भराना आवश्यक नहीिं होगा।"

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

"6. इस राजाज्ञा से सिंलग्न नवकल्प-पत्र
पर प्रत्येक सहायक/प्रधान से नवकल्प प्राप्त कर
नलया
जाये
और
तद्नुसार
उनको
सेवा
पुन्तस्तकाओिं से इस नवकल्प-पत्र को सुरनक्षत रखा
जाये। यह नवकल्प-पत्र नदनािंक 30 जून, 1978
तक प्रत्येक अध्यापक से प्राप्त कर नलया जाये
और 15 जुलाई 1978 तक इस सबि में हुई
प्रगनत से शासन को अवगत कराया जाये। एक
बार
नकया
गया
नवकल्प
अिंनतम
और
अपररवत्तानीय होगा।"

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

"उपरोि नवर्यक पर अनतररि
नशक्षा ननदेशक (बेनसक) के अद्धाशासकीय
पत्रािंक पेंशन-2-16124/बावन-9(85)/80-81 के
सिंदभा में मुझे आपसे यह कहने का ननदेश हुआ
है नक उि पात्र में वनणात न्तस्थनत में राज्यपाल
महोदय ने शासनादेश सिंख्या 5197/15-5-79/77
नदनािंक 8-3-78 में उत्तर प्रदेश नशक्षा पररर्द् द्वार
सिंचानलत स्कूलोिं के नशक्षकोिं के सिंबिंध में
सिंशोनधत पेंशन योजना को स्वीकार करने का
नवकल्प-पत्र प्रस्तुनत नकये जाने की नतनथ को जो
उि शासनादेश नदनािंक 8-3-78 के पैरा-6 के
अनुसार 30-6-78 तक था, 31 नदसबर, 1981
तक बढ़ायें जाने की स्वीकृनत प्रदान कर दी है।
अतः आपसे अनुरोध है नक आप सभी
अनधकाररयोिं एविं बेनसक नशक्षा पररर्द् के अधीन
9 All Sushila Yadav Vs. State of U.P. & Ors.
1415
कायारत अध्यापकोिं को यह ननदेश दे दें नक उि
शासनादेश नदनािंक 8-3-78 में स्वीकृत पेंशन
योजना के नवर्य में नवकल्प पत्र भरे जाने की पूरी
कायावाही 31-12-81 के पूवा ही पूणा कर ली
जाये। भनवष्य में अब इस नतनथ को बढ़ाया जाना
सिंभव नहीिं होगा।"

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

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

"3. यह ननयमावली वेतन नवतरण
अनधननयम, 1971 की पररनध में 30-6-78 या
उसके पचात कायारत केवल उन राज्य सहायता
प्राप्त
उच्चतर
माध्यनमक
नवद्यालयोिं
के
अध्यापकोिं पर लागू होगी जो नकसी स्थानीय
ननकाय अथवा नकसी अशासकीय प्रबितन्त्र
द्वारा सिंचानलत है तथा जो 58 वर्ा की आयु पर
सेवाननवृत्त होने के पक्ष में अपना नवकल्प इस
ननयमावली की नवज्ञन्तप्त की नतनथ के िः मास के
अन्दर दे देंगे। नवकल्प का एक बार प्रयोग कर
लेने पर वह अन्तिम समझा जायेगा। सेवाननवृनत्त
की नतनथ समाप्त मानी जायेगी।"

Rule 4 provided as under:-

"4. इस ननयमावली की नवज्ञन्तप्त की
नतनथ के उपराि ननयुि अध्यापकोिं द्वारा अपने
स्थायीकरण की नतनथ के दो वर्ों के अन्दर 58
वर्ा की आयु पर सेवाननवृनत्त होने के पक्ष में
अपना नवकल्प न देने पर यह ननयमावली उस
पर लागू नहीिं होगी। नवकल्प का एक बार प्रयोग
कर लेने पर वह अन्तिम समझा जायेगा।"

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

"मुझे उपयुाि नवर्यक शासनादेश
सिंख्या 5197/15-5-79/77 नदनािंक 8-3-78 तथा
शासनादेश सिंख्या 3181/15-5-81-79/77 नदनािंक
6-6-81 के अनुिम में से यह कहने का ननदेश
हुआ है नक अपररहाया कारणोिंवश कनतपय
नशक्षकोिं द्वारा ननधााररत अवनध तक या तो नवकल्प
पत्र भरे ही नहीिं जा सके अथवा त्रुनटपूणा ढिंग से भरे
गये। र्लस्वरुप ऐसे नशक्षक उि शासनादेशोिं
द्वारा प्रदत्त सुनवधा के लाभोिं से विंनचत रह गये थे
और अनधकािंश जनपदोिं के नशक्षक ननरिर यह
मािंग कर रहे हैं नक उन्हे उि शासनादेश में
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
अनुमन्य सुनवधा का लाभ प्रदान नकया जाये। चूिंनक
उि शासनादेशोिं द्वारा अनुमन्य सुनवधा का लाभ
प्राप्त करने हेतु ननधााररत अवनध समाप्त हो चुकी
थी, नजसके कारण उत्तर प्रदेश बेनसक नशक्षा
पररर्द् द्वारा सिंचानलत स्कूलोिं के नशक्षकोिं जो उि
सुनवधाओिं से विंनचत रह गये थे, को उि सुनवधा
नदया जाना सम्भव नहीिं हो पा रहा था। अतः
पररर्दीय नशक्षकोिं द्वार ननरिर की जा रही इस
मािंग पर सम्यक् नवचारोपराि राज्यपाल महोदय
ने उन नशक्षकोिं जो उि शासनादेश के अिगात
अनुमन्य लाभ प्राप्त करने हेतु नवकल्प देने से
विंनचत रह गये थे अथवा नजन्होिंने पुरानी पेंशन
योजना के अिगात नवकल्प प्रस्तुत नकया था, को
उि शासना-देश में ननधााररत अन्य ननयमोिं/शतों व
प्रानवधानोिं के अिगात अन्तिम रुप से 90 नदन के
अन्दर ननधााररत प्रपत्रोिं पर पुनः नवकल्प प्रस्तुत
नकए जाने की स्वीकृत सहर्ा प्रदान कर दी है। मुझे
यह भी कहना है नक नवकल्प पुनः प्रस्तुत नकये
जाने की उि सुनवधा उत्तर प्रदेश बेनसक नशक्षा
पररर्द् के अधीन कायारत नशक्षणेत्तर कमाचाररयोिं
को भी आवश्यकतानुसार अनुमन्य होगी।

2. मुझे यह भी कहने का ननदेश हुआ
है नक जो कायारत नशक्षक/नशक्षणेत्तर कमाचारी
इस शासनादेश में दी जा रही सुनवधा का लाभ
उि ननधााररत अवनध के अन्दर प्राप्त करने हेतु
नवकल्प-पत्र प्रस्तुत नहीिं करेंगे उनके सबि में
यह स्वतः मान नलया जायेगा नक उन पर नयी
पेंशन योजना लागू है। इस शासनादेश के ननगात
होने
की
नतनथ
के
पचात्
ननयुि
नशक्षक/नशक्षणेत्तर कमाचारी स्वतः इस सुनवधा से
आच्छानदत माने जायेंगे।"

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

"उपयुाि नवर्यक सनचव उत्तर प्रदेश
बेनसक नशक्षा पररर्द् इलाहाबाद के पत्रािंक
बे0नश0प0/पेंशन/17066/92-93 नदनािंक 30-1092 के सिंदभा में मुझे यह कहने का ननदेश हुआ है
नक उत्तर प्रदेश बेनसक नशक्षा पररर्द् के
अधायपकोिं एविं नशक्षणेत्तर कमाचाररयोिं, सहायता
प्राप्त गैर सरकारी जूननयर हाई स्कूलोिं के
नशक्षकोिं
एविं
नशक्षणेत्तर
कमाचाररयोिं
को
माध्यनमक नशक्षकोिं की भािंनत 58 वर्ा की आयु
पर सेवा ननवृत्त होने का नवकल्प देने की न्तस्थनत
में ग्रेच्युटी की सुनवधा नदये जाने की मािंग की है।
सम्यक् नवचारोपराि श्री राज्यपाल यह आदेश
प्रदान करते है नक नजस प्रकार राज्य सहायता
प्राप्त माध्यनमक नवद्यालयोिं के नशक्षकोिं को 58
वर्ा की आयु पर सेवा ननवृत्त होने का नवकल्प
देने पर राजकीय कमाचाररयोिं की भािंनत ग्रेच्युटी
की सुनवधा अनुमन्य है, उसी प्रकार उ0प्र0
बेनसक नशक्षा पररर्द् के अध्यापकोिं एविं
नशक्षणेत्तर कमाचाररयोिं, सहायता प्राप्त गैर
सरकारी माध्यनमक नवद्यालयोिं के नशक्षणेत्तर
कमाचाररयोिं तथा सहायता प्राप्त गैर सरकारी
जूननयर हाई स्कूलोिं नशक्षकोिं एविं नशक्षणेत्तर
कमाचाररयोिं को 58 वर्ा की आयु में सेवा ननवृत्त
होने की दशा में ग्रेच्युटी की सुनवधा प्रदान की
जाये। यह सुनवधा उन्ही अध्यापकोिं एविं
कमाचाररयोिं को अनुमन्य होगी, जो 58 वर्ा की
आयु पर सेवा ननवृत्त होने का नवकल्प ननधााररत
प्रपत्र पर प्रस्तुत करेंगे। यह सुनवधा उपरोि
वनणात सभी नशक्षकोिं/कमाचाररयोिं पर इन आदेशोिं
के जारी होने की नतनथ से लागू होगी।

2.