PANTNAGAR VISHVIDYALAY SEWA NIVRIT SHIKSHAK KALYAN SAMITI vs STATE OF UTTARAKHAND
- Court
- Uttarakhand High Court
UKHC010053112023
2026:UHC:7841-DB
Reserved on: 18.08.2026
Delivered on: 01.09.2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.131 of 2023 (S/B)
Pantnagar Vishvavidyalay Sewa Nivrit Shikshak Kalyan
Samiti, Rudrapur
….....Petitioner
Versus
State of Uttarakhand & Others ..….Respondents
Present:-
Mr. B. P. Nautiyal, learned Senior Advocate assisted by Mr.
Mohd. Matlub, learned counsel for the petitioner.
Mr. Narayan Dutt, learned Standing Counsel for the State.
Mr. C. S. Rawat, learned counsel for the University.
Coram:Hon’ble Ravindra Maithani, J.
Hon’ble Siddhartha Sah, J.
(Per: Hon’ble Siddhartha Sah, J.)
By means of the present Writ Petition under Article 226 of
the Constitution of India, the petitioner has prayed for the following
reliefs:-
i. Issue a writ, order or direction in the nature of certiorari
quashing the last part of the impugned G.O. bearing
No.906/XII-2/2022-03(02)/2022/14021 dated 27.09.2022
(Annexure No.08) wherein it's provided that the "Regarding
others, their representations may please be disposed of
according to the instructions/rules prevailing at the time of
their retirement" and also the Letter No.V.N./Pension/1493
Dated 31-10-2022 (Annexure No.10) passed by respondent
no.2 in pursuance of G.O. dated 27-09-2022.
ii. Issue a writ, order or direction in the nature of mandamus
directing respondents to make the payment of gratuity along
with 15% interest individually to each member of the
petitioner samiti as per details given in Annexure No.06 & 6A
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and individual members of the petitioner samiti who opted for
retirement at the age of 60 years as teachers before 18-06-
2005/family pensioners of such deceased retired teachers
who retired before 18-06-2005/legal heir of such deceased
retired teachers who retired before 18-06-2005 and his/her
deceased family pensioners as per their entitlement in
accordance with Law under the provisions of the Payment of
Gratuity Act, 1972.
iii. Issue any other writ or direction which this Hon'ble Court may
deem fit and proper in the circumstances of the case.
iv. Award the cost of the petition to the petitioner.
2. The writ petition was filed inter-alia with the following
averments:-
(i) The petitioner is a registered samiti of the retired teachers
of G.B. Pant University of Agriculture & Technology who
retired before 18.06.2005 (hereinafter called the said
teachers) and presently includes 63 pensioners, 19 family
pensioners (i.e. widows of the deceased retired teachers)
and 3 legal heirs of the deceased retired teachers and
their deceased family pensioner and as such the
petitioner samiti represents the said teachers, family
pensioners/widows of the deceased retired teachers and
after the death of family pensioner (deceased
widows/family pensioner) their legal heir.
(ii) The petitioner samiti vide resolution dated 25.01.2023
authorized Dr. Mahohar Lal Verma for filing the present
writ petition and to proceed further and do the needful
and as such the present writ petition is being filed by the
authorized signatory of the Pantnagar Vishvavidyalay
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Sewa Nivrit Shishak Kalyan Samiti, Rudrapur (hereinafter
called the petitioner samiti).
(iii) Earlier in the year of 1984 as per G.O. No. 1009/12-8-
400 (19)/84 dated 10-12-1984 & G.O. No. 4026/12-8-
400(19)/84 dated 19-12-1984, U.P. Govt. (Parent state of
State of Uttarakhand) it was provided that:
(a) For those employees who are appointed before 1.1.1984
and who in accordance with G.O. No. 1009/12.08.400-
(19)/84 dated 10.09.84 and G.O. No.
4026/12.08.400(19)/84 dated 19.12.84 opt for the
benefits of pension death-cum-retirement gratuity family
pension and general provident fund, the age of
superannuation shall be 58 years.
(b) For the employees who are appointed before 1.1.1984 and
who in accordance with G.O. No. 1009/12.08.400-(19)/84
dated 10.09.84 and G.O. No. 4026/12.08.400(19)/84
dated 19.12.84 opt for the benefits of pension, family
pension and general provident fund, the age of
superannuation shall be 60 years.
(iv) Later on after the creation of the state of Uttarakhand, in
the year 2005 a G.O. bearing No. 220 XXVII (3) Α.ΛΑ./205
dated 18-06-2005 was issued wherein it is provided that
the same retiral benefits will be given to those teaching or
non-teaching staff who either retired at the age of 58 or
60 years and as such the benefit of payment of gratuity
after retirement at the age of 60 years was also provided
and as such as per the said G.O. of 2005 the
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disentitlement of getting benefits of payment of gratuity
was cancelled by the said G.O. Later on a clarification
memo dated 25-06-2005 with regard to G.O. dated 18-06-
2005 was also issued.
(v) Thereafter in the year of 2006 some of the non-teaching
staff of the respondent university who earlier opted to
retire at the age of 60 years under the earlier G.O. dated
19-12-1984 of the Govt. of U.P. and were deprived from
the benefit of gratuity applied before the competent
authority under the Payment of Gratuity Act of 1972 and
agitated their claim before the said authority by filing a
case for payment of gratuity which was registered as
P.G.A. Case No. 4/2006 and was ultimately decided vide
order 19-01-2013 in their favour and the respondent
university was directed to make the payment of their
gratuity. The said order was challenged by the respondent
university by filing an appeal before the appellate
authority and the said appeal was registered as P.G.
Appeal No. 01/2014 and was dismissed vide order dated
22-11-2016.
(vi) The respondent university challenged both the orders
dated 09-01-2013 & 22-11-2016 before this Hon'ble
Court by filing separate writ petitions in the year of 2017.
(vii) This Hon'ble Court while dismissing all the writ petitions
vide its Judgment dated 01-11-2017 reduced the rate of
interest from 10% per annum to 6% per annum.
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(viii) The respondent university went in appeal before the,
Hon'ble Apex Court by filing an S.L.P. in the year 2018.
The Hon'ble Apex Court dismissed all the S.L.P.'s filed by
the respondent university as per its order dated 18-11-
2021 and refused to interfere in the Judgment dated 01-
11-2017 passed by this Hon'ble Court.
(ix) After passing of the Judgement dated 18-11-2021, the
authorised signatory of the samiti and some other
members of the petitioner samiti individually approached
the respondent university by submitting their
representations for payment of gratuity. The
representation dated 09-12-2021 was submitted by
authorised signatory of petitioner samiti and
representation dated 07-02-2022 was submitted by
another member of the petitioner samiti Dr. S.C. Mondal
to the respondent university. Detail of the members of
petitioner samiti who are entitled for payment of gratuity
and with regard to whom letter dated 21-01-2022 is
written by the respondent university to respondent no. 1
is eighty five is being filed in this writ petition disclosing
the amount due to them individually.
(x) In addition to the names of members of the petitioner
society described in annexure no. 06 of this petition there
are other 4 members also in the petitioner society namely
Dr. Ratan Lal Arora, Dr. Sewa Ram, Dr. V.P. Bhargawa &
Smt. Uma Singh.
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(xi) Thereafter a letter dated 21-01-2022 was written by the
respondent university to respondent no. 1 stating therein
that in addition to the retired non-teaching employees in
whose favour the judgment dated 18-11-2021 was passed
by the Hon'ble Apex Court, the other retired teachers and
family pensioners of the deceased retired teachers who
retired prior to 18-06-2005 are requesting for payment of
the gratuity amount by filing their representation and as
such requested respondent no. 1 for early & proper
directions in this regard.
(xii) Thereafter letter dated 05-03-2022 was written by the
respondent university with regard to the payment of
gratuity and therein it was stated that further action
regarding payment of gratuity will be taken after the
issuance of instructions/guidelines from the Government.
(xiii) Thereafter ultimately a G.O. bearing No. 906/XII-2/2022-
03(02)/2022/14021 Dated 27-09-2022-was issued by the
respondent no. 1 wherein the respondent no. 2 was
directed with regard to the petitioner's claim in the
following words:
“……….. Regarding others, their representations may
please be disposed of according to the
instructions/rules prevailing at the time of their
retirement"
The G.O. dated 27-09-2022 wherein the above
directions are there which on the face of it are arbitrary,
illegal and without jurisdiction and therefore this part of
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the said G.O. is challenged and is impugned in the
present petition (hereinafter called the impugned part of
the said G.O.).
(xiv) The respondent university in pursuance of the G.O. dated
27-09-2022 issued its letter dated 31-10-2022 wherein it
is stated that as per the impugned part of the G.O. the
representation of all other retired employees except the 28
employees may be disposed of as per the
rules/regulations prevalent at the time of their
retirements and as such as per the claim of payment of
gratuity to the members of the petitioner samiti was
rejected. The letter dated 31-10-2022 is also impugned in
the present petition.
(xv) The G.O. dated 27-09-2022 is arbitrary, illegal and
discriminatory and therefore the authorised signatory of
the petitioner wrote letter dated 26-11-2022 to
respondent no. 1 but for no result.
(xvi) In view of the facts stated above in the preceding paras of
this writ petition, the members of the petitioner's samiti
who retired prior to 18-06-2005 and were earlier denied
the payment of gratuity on the basis G.O. of Govt. of U.P.
No. 1009/12.08.400-(19)/84 dated 10.09.84 and G.O. No.
4026/12.08.400(19)/84 dated 19.12.84 which was
ultimately found illegal upto the Hon'ble Apex Court and
as such the denial of payment of gratuity to the members
of the petitioner samiti was/is unlawful as per Judgment
passed by this Hon'ble Court as well as the Hon'ble Apex
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Court and therefore members of the petitioner samiti
approached the respondent no. 2 & 3 for payment of
gratuity amount in view of the Judgement passed by the
Hon'ble Apex Court on 18-11-2021. The respondent no. 2
& 3 requested respondent no.1 for appropriate direction
for payment of gratuity to the members of the petitioner
samiti. The respondent no. 1 instead of issuing direction
for the payment of gratuity to the members of the
petitioner samiti in light of the Judgment dated 18-11-
2021 passed by the Hon'ble Apex Court issued
G.O./order dated 27-09-2022 directing therein that the
representation of the members of the petitioner samiti be
disposed of in accordance with the instructions/rules
prevailing at the time of their retirement and therefore
respondent no. 2 & 3 proceeded accordingly and instead
of making payment of gratuity to the members of the
petitioner samiti issued letter dated 31-10-2022 and
declined the payment of gratuity.
(xvii) From the bare perusal of the letter dated 27-09-2022 &
31-10-2022 the respondent no. 1 permitted payment of
gratuity to 28 retired non-teaching employees of the
respondent university who like the members of the
petitioner samiti had also retired before 18-06-2005 and
had opted for retirement age of 60 years instead of 58
years and were deprived from payment of gratuity as per
G.O. of Govt. of U.P. dated 10-12-1984 & 19-12-1984 but
had knocked the door of the Court and ultimately were
found entitled for payment of gratuity by the Hon'ble Apex
Court as per its Judgment dated 18-11-2021 but the
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members of the petitioner samiti who also were similarly
situated and fall within the same category as the 28
retired non-teaching employees who are being given
benefit of payment of gratuity have not knocked the door
of the Court and therefore the respondents deprived them
and are giving the members of the petitioners samiti a
step-motherly treatment and have also acted in an
arbitrary and illegal manner while refusing the payment
of gratuity to the members of the petitioner samiti.
(xviii) The impugned part of the said G.O. dated 27-09-2022
wherein it was directed that further process be completed
as per the Judgement of Hon'ble Supreme Court which
was with regard to the 28 non-teaching staff only and
with regard to the other representation, which were of the
members of the petitioner samiti it was directed that the
same be disposed of as per the instructions/rules
prevailing at the time of their retirements which is not
only arbitrary, illegal and without jurisdiction but is also
contrary to the Judgment rendered by this Hon'ble Court
and the Hon'ble Apex Court on 01-11-2017 & 18-11-2021
respectively and as such the said part of the impugned
order is not only unsustainable but is also liable to be
quashed.
3. Thus, with the aforesaid pleadings/averments the writ
petition was filed seeking the reliefs of quashing of the impugned G.Os.
dated 27.09.2022 and 31.10.2022 and also a mandamus for making
payment of gratuity along with interest at the rate of 15% individually
to each member of the petitioner/samiti.
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4. The respondent university contested the aforesaid writ
petition by filing its counter affidavit with main contentions as follows:-
“These 85 personnel had opted for the benefits of pension,
family pension and General Provident Fund only, and retired at
the superannuation age of 60 years. As per provisions of G.O.
No. 1009/12.8.400-(19)/84 dated 10.12.84 and G.O.
No.4026/12.8.400(19)/84 dated 19.12.84, personnel who have
opted for the superannuation age of 60 years are entitled for the
benefits of pension, family pension and General Provident Fund
only, not gratuity.
The following provisions are given in Clause 6 of Act & Statues
of the University:-
*6. AGE OF RETIREMENT
The age of superannuation for the employee of the University
shall be as follow:
(i)..............................................................................
(ii) For those employees who are appointed before 1.1.84
and who in accordance with G.O. No. 1009/12.8.400-
(19)/84 dated 10.12.84 and G.O.
No.4026/12.8.400(19)/84 dated 19.12.84 opt for the
benefits of pension death-cum-retirement gratuity family
pension and general provident fund, the age of
superannuation shall be 58 years.
(iii) For those employees who are appointed before 1.1.84
and who in accordance with G.O. No. 1009/12.8.400
(19)/84 dated 10.12.84, and G.O. No. 4026/12-8-400
(19)/84 dt. 19-12-84 opt for the benefits of pension, family
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pension and General Provident Fund, the age of
superannuation shall be 60 years.
All the petitioners were sanctioned pensionary benefits,
by the Additional Director, Directorate of Accounts &
Entitlement, Camp Office, Haldwani, Nainital, on the basis of
option exercised by the petitioners as per the provision of G.O.
No.4026/12.8.400(19)/84 dated 19.12.84.& G.O. No.
1009/12.8.400-(19)/84 dated 10.12.84.
Since, the gratuity & pensionary benefits are paid from
the Treasury of the State Government. Therefore, the University
sought the directions from the State Government in this matter
vide letter no. Vi.Ni./611 dated 21.01.2022 & reminder no.
Vi.Ni./679 dated 22.03.2022. In response to above letters, the
following directions vide Uttarakhand Government's letter/
Order No. 264/XIII-2/2022-03(02)/2022 dated 14.06.2022,
which is annexed herewith as Annexure-1, on the subject
'Regarding providing guidelines for payment of gratuity to the
personnel retired from the University in compliance of the orders
of the Hon'ble Supreme Court. ' was issued to the University: -
“......................................ensure that action is taken as per
the instructions given by the Hon'ble Court, in respect of
the rest of the personnel, the universities may want to
decide at their own level according to the rules/statutes of
the University"
Again, the University sought the directions from the state
government in this matter vide letter no. Vi.Ni./118 dated
02.08.2022, which is annexed herewith as Annexure-2. In
response to above letter, the University has received the
following directions vide Uttarakhand Government's Order No.
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906/XIII-2/2022-03(02)/2022 dated 27.09.2022 on subject 'In
relation to providing guidelines for the payment of gratuity to the
retired personnel of the university': -
“............................ kindly do the needful in the matter,
only in compliance of the orders of Hon'ble Supreme Court.
On matters of other employees, kindly dispose-off their
representation as per Government Orders/ Rules effective
at that time."
The University has abided by the orders of Hon'ble High
court only in respect of 28 petitioners. The Hon'ble High Court
have ordered for payment of gratuity to only 28 employees
(Annexure-04 of writ petition), which does not include name of
the petitioners. In the similar matters, the university is
disposing-off the representation of all personnel as per the
instructions received from the State Government vide order
dated 27.09.2022. The University has not denied the payment of
gratuity to any personnel in the similar matters, instead
intimated the provisions of G.O. no. 906/XIII-2/2022-
03(02)/2022 dated 27.09.2022. The university is simply
complying the provisions of G.O. dated 27.09.2022 and is bound
to abide the provisions of all the government orders issued from
time to time. Thus, nothing has been done deliberately to
withheld the payment of gratuity to these petitioners.”
5. The respondent no.1/State also contested the aforesaid
writ petition by filing its counter affidavit and mainly contended therein
as follows:-
(i) Before the formation of Uttarakhand State, the personnel
of the university were covered by "THE UTTAR PRADESH
RETIREMENT BENEFITS RULES, 1961" issued by the
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erstwhile state of Uttar Pradesh and after the formation of
the Uttarakhand State, University employees are covered
by the Retirement Benefit Rules issued from time to time
by the State of Uttarakhand {currently "UTTARAKHAND
RETIREMENT BENEFITS ACT, 2018" Hence the
employees of the University are not covered by the
Payment of Gratuity Act, 1972 at all.
(ii) Under THE UTTAR PRADESH RETIREMENT BENEFITS
RULES 1961, pension & commutation amount is paid
beside gratuity. The petitioner opted for retirement at the
age of 60 years without the benefit of gratuity. The
petitioner is getting paid retirement benefits (i.e. pension
& commutation) under THE UTTAR PRADESH
RETIREMENT BENEFITS RULES, 1961. Therefore,
Payment of Gratuity Act, 1972 is not applicable on
University personnel at all. In case the petitioner samiti
wants State Government to make its members payment of
Gratuity under Payment of Gratuity Act, 1972, they will
have to surrender the right to receive the pension &
commutation benefit under THE UTTAR PRADESH
RETIREMENT BENEFITS RULES 1961.
(iii) 'The Uttarakhand Qualifying Service for Pension and
is published
Validation Act, 2022' (Act No. 15 of 2023)
vide notification по. 176/XXXVI(3)/2023/78(1)/2022
dated 08.05.2023 by the Government of Uttarakhand. As
per the notification, the Act shall be deemed to have come
into force on April 1, 1961. The said Notification/Act too
evidences the applicability of "THE UTTAR PRADESH
RETIREMENT BENEFITS RULES, 1961" on the
Uttarakhand Government employees as well as University
personnel before the formation of the Uttarakhand State.
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Hence, the personnel of the University are not covered by
the Payment of Gratuity Act, 1972 at all.
(iv) The payments of Retirement Benefits to the personnel
retiring from the University till 17.06.2005 were governed
by Government Order No. 1009/12.8.400-(19)/84 dated
10.12.84. It is clearly mentioned on paragraph 07 of the
Government order dated 10.12.1984 that "the qualifying
service admissible for pension of teachers opting for
retirement at the age of 60 years, will be calculated only
on the basis of service rendered till the age of 58 years.
But the retirement gratuity (death cum retirement
gratuity) to such teachers will not be admissible."
(v) The members of the petitioner samiti were sanctioned
pensionary benefits, by the Additional Director,
Directorate of Accounts & Entitlement, Camp Office,
Haldwani, Nainital, on the basis of option/ revised option
exercised by the member of the petitioner samiti as per
the provision of G.O. No.4026/12.8.400(19)/84 dated
19.12.84 & G.O. No. 1009/12.8.400-(19)/84 dated
10.12.84. The members of petitioner samiti were retired
from the University before 18.06.2005, and were aware of
all the rules & regulations of the University. The members
of the petitioners samiti cannot claim the retirement
benefit in terms of G.O. dated 18.06.2005 as they were
covered under the above mentioned G.O.s for payment of
retirement benefits.
(vi) The claims could not be entertained in view of the settled
legal position & it is also submitted that by virtue of
applicable laws now, such payments cannot be made. In
this regard, judgment dated 17.10.2014 of the Hon'ble
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Supreme Court in Civil Appeal No. 9849 of 2014
(ARISING OUT OF SLP (C) NO. 18639 OF 2012) is worth
mentioning for kind perusal of this Hon’ble Court.
(vii) The Hon’ble Court have ordered for payment of gratuity to
only 28 employees (Annexure-04 of writ petition), which
does not include the name of petitioner. The university
has disposed-off the representation of the petitioner
samiti as per instructions received from state government
vide order dated 27.09.2022.
(viii) The University has been provided only administrative
autonomy by the government, only the government is
authorized to take decisions on each and every issue of
financial matters.
Therefore, the prayer of the petitioner for quashing
order dated 27.09.2022 passed by the respondent no. 1
and direct the respondents to pay the gratuity of the
petitioner with 15% interest is not tenable and any
challenge by the writ petitioner to the said Orders is not
legally maintainable, accordingly, the petition merits
dismissal with cost.
6. The learned Senior Counsel for the petitioners would
submit that regarding the matter in issue, there was an earlier round
of litigation pertaining to other identically situated employees of the
university and the matter has attained finality up to the Hon'ble
Supreme Court.
He would further submit that the Hon'ble Supreme Court,
in the Special Leave to Appeal (C) No.1803 of 2018, preferred by the
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Govind Ballabh Pant University of Agriculture & Technology,
Pantnagar, District Udham Singh Nagar, has held as follows:-
“Having heard learned counsel for the petitioner and having
perused the material placed on record, we are at one with the
view taken by the High Court that mere exercise of option by an
employee, to avail the benefit of extension of age of retirement to
60 years, could not have operated against his entitlement to
gratuity; and exercising of such an option will not deprive the
private respondents to gratuity unless and until the establishment
i.e., the petitioner-University, was exempted in strict compliance of
Section 5 of the Payment of Gratuity Act, 1972, after prior
approval of the State Government. There being no such exemption
availed by the petitioner-University, the High Court has rightly not
interfered with the principal part of the orders passed by the
Controlling Authority and the Appellate Authority.
On the other hand, the High Court has been rather
considerate to the petitioner in reducing the rate of interest
awarded to the private respondents from 10% to 6% p.a.
In view of the above, no case for interference is made out.
Hence, these special leave petitions stand dismissed.
All the pending applications stand disposed of.”
7. The learned Senior Counsel for the petitioners has also
drawn the attention of this Court to the judgment of this Court in Writ
Petition No.395 of 2017 (M/S), ‘G.B. Pant University vs. Appellate
Authority and others’ with connected petitions, wherein vide judgment
and order dated 01.11.2017, learned Single Judge of this Court had
come to the conclusion in paragraph nos. 23, 24 and 25, which are
extracted hereunder for ready reference:-
“23. Further in its para 14 and 19 it has been provided that no
exemption of the Payment of Gratuity Act could be granted until
and unless it has been exempted by the appropriate government,
as the gratuity has been held to be a statutory right, which cannot
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be taken away except in accordance with the provisions of the
Act, whereunder statute itself contemplates the grant of
exemption if made as per the procedure provided in it.
24. There is nothing on record that the exemption has been
availed by the petitioner and that too is in strict compliance of
Section 5 of the Act. The Hon'ble Apex Court has also considered
the impact of Section 14, which provides that provision of the Act
will continue to be enforced and effect irrespective of anything
contained in consistent in any other statute, meaning thereby
since Section 14 contains a non-obstinate clause, the Act would
continue to be enforced irrespective of the interpretation which
has been argued by the learned counsel for the petitioner in the
light of the provisions contained under Chapter 19 of the statute
and in the light of the provisions contained under the Government
Order dated 19.12.1984.
25......... Although, the issue has been dealt to the said effect in
the earlier paragraphs of the judgment, but still it is repeated that
since in pursuance to the exercise of benefit of extension of 60
years of age of retirement, the Payment of Gratuity under the Act
of 1972, was not intended to deprive gratuity to optees. Hence,
exercising of an option will not deprive the private respondent of
gratuity until and unless it has been made exempted after a prior
approval of the State Government. In that view of the matter, I do
not find any error committed by both the courts below.”
8. Basing his arguments on the judgments of this Court and
Hon’ble Supreme Court in the matters of other identically situated
employees of the university, the learned Senior Counsel for the
petitioners would submit that the impugned Government Order dated
27.09.2022 cannot be sustained, inasmuch as it restricts the benefit of
the Hon'ble Supreme Court's judgment to only those employees who
were parties to the writ petitions and pertaining to whom the Hon’ble
Supreme Court had dismissed the SLPs.
9. It is further submitted that the Office Order dated
31.10.2022 based on GO dated 27.09.2022 also cannot be sustained,
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inasmuch as the petitioners in the instant writ petition were also
identically situated to the employees who were benefitted by the
judgment of the learned Single Judge, which attained finality vide
judgment of the Hon'ble Supreme Court dated 18.11.2021.
10. The learned Senior Counsel for the petitioners would
further submit that since the university had not sought exemption
under Section 5 of the Payment of Gratuity Act, therefore, the
employees who had opted for retirement at the age of 60 years, would
also be entitled to gratuity.
He would further submit that the judgment of the Hon'ble
Supreme Court in Special Leave to Appeal (C) No.1803 of 2018 and
connected Special Leave Petitions clearly states that merely exercise of
option by an employee to avail the benefit of extension of age of
retirement to 60 years could not have operated against the petitioners
for seeking payment of gratuity in view of the judgment of the Supreme
Court.
11. Learned Senior Counsel for the petitioners has relied upon
the judgment of the Hon'ble Supreme Court in the case of ‘State of
Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others,
reported in (2015) 1 SCC 347, and would submit that the earlier order
of Hon’ble Supreme Court/High Court in the case of other employees
would be a judgment in rem and the benefit would be available to all
similarly situated persons, like the petitioners, whether they
approached the court or not. Hence, he would further submit that in
the present case the prior judgments dated 01.11.2017 and
18.11.2021 would be judgments in rem, and the petitioners would be
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entitled to the benefit of the judgment of the writ petition and its
connected matters which attained finality upto Hon’ble Apex Court.
Learned Senior Counsel for the petitioner has placed
reliance upon para nos.13 and 22.3 in the case of Arvind Kumar
Srivastava (supra). Para nos.13 & 22.3 thereof are being reproduced
hereunder for ready reference:-
“13. In State of Karnataka v. C. Lalitha [State of Karnataka v. C.
Lalitha, (2006) 2 SCC 747 : 2006 SCC (L&S) 447] , which is the
next case relied upon by the learned counsel for the respondents,
our attention was drawn to the following passage from the said
judgment : (SCC p. 756, para 29)
“29. Service jurisprudence evolved by this Court from time to
time postulates that all persons similarly situated should be
treated similarly. Only because one person has approached
the court that would not mean that persons similarly situated
should be treated differently. It is furthermore well settled
that the question of seniority should be governed by the rules.
It may be true that this Court took notice of the subsequent
events, namely, that in the meantime she had also been
promoted as Assistant Commissioner which was a Category I
post but the direction to create a supernumerary post to
adjust her must be held to have been issued only with a view
to accommodate her therein as otherwise she might have
been reverted and not for the purpose of conferring a benefit
to which she was not otherwise entitled to.”
22.3. However, this exception may not apply in those cases where
the judgment pronounced by the court was judgment in rem with
intention to give benefit to all similarly situated persons, whether
they approached the court or not. With such a pronouncement the
obligation is cast upon the authorities to itself extend the benefit
thereof to all similarly situated persons. Such a situation can
occur when the subject-matter of the decision touches upon the
policy matters, like scheme of regularisation and the like (see K.C.
Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6
SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the
judgment of the court was in personam holding that benefit of the
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said judgment shall accrue to the parties before the court and
such an intention is stated expressly in the judgment or it can be
impliedly found out from the tenor and language of the judgment,
those who want to get the benefit of the said judgment extended
to them shall have to satisfy that their petition does not suffer
from either laches and delays or acquiescence.
12. Per contra , the learned State Counsel/respondent No.1
would submit that the petitioners are not identically situated to the
other 28 employees in respect of which the matter attained finality up
to the Hon'ble Supreme Court.
i. The petitioners have bypassed the statutory remedy under
the Payment of Gratuity Act and directly filed the writ
petition; therefore, it is not maintainable.
ii. Proper court fees have not been tendered by the petitioners
or all the members of the association.
iii. A writ petition filed on behalf of an association would not
be maintainable in view of the judgment of the Hon'ble
Supreme Court in the case of B. Srinivasa Reddy vs.
Karnataka Urban Water Supply & Drainage Board
Employees’ Association and others, reported in (2006) 11
SCC 731 (II).
13. Learned State Counsel/respondent No.1 would further
submit that the State of Uttar Pradesh was a necessary party but has
not been impleaded as a party respondent; therefore, on this count
also, the petition is not maintainable, particularly in view of Section 54
read with the 8th Schedule of the U.P. Reorganisation Act, 2000,
inasmuch as for any liability prior to the appointed date, i.e.,
09.11.2000, the State of U.P. would be liable for any financial
implication.
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14. Learned State Counsel/respondent No.1 has also relied
upon a judgment of the Hon'ble Supreme Court in the case of
Chairman/Managing Director, Uttar Pradesh Power Corporation Ltd.
and Others vs. Ram Gopal, reported in (2021) 13 SCC 225, and while
drawing attention of the Court to paragraph no.14 thereof would
submit that the instant writ petition would not be maintainable.
“14. The order passed by the High Court for retention of
Shyam Behari Lal in service, does not possess any
ingredient of a judgment in rem. The abovecited exception,
therefore, does not come to the respondent's rescue. It is also
pertinent to mention that neither has it been pleaded nor is it
apparent from the material on record that the respondent
was unable to approach the court of law in time on account
of any social or financial disability. Had such been the case,
he ought to have availed free legal aid and should have
ventilated his grievances in a timely manner. Instead, he
seems to be under the assumption that the termination order
is illegal, that he consequently has a right to be reinstated,
and that he can agitate the same at his own sweet will.
Neither of these three assumptions are true, as elaborated
by us earlier.”
15. Learned State Counsel/respondent No.1 has also relied
upon a judgment of the Hon'ble Supreme Court in the case of ‘N.
Manoharan, etc. vs. Administrative Officer and Another’ reported in
2026 SCC OnLine SC 189 and has relied upon paragraph no.7(iv) and
12 thereof, which are extracted hereunder for ready reference:-
“7...(iv) The Principle of Estoppel: The Appellants had
already received their retirement benefits, including pension
and gratuity, under the CCS (Pension) Rules, 1972, without
22
protest at the time of retirement. An employee cannot claim
benefits under two different statutes for the same purpose.
Having accepted the benefits under the specific rules
applicable to government servants, i.e., CCS Rules, they are
estopped from turning around and claiming higher benefits
under a general law, i.e., the PG Act, which expressly
excludes them.
12. It is relevant to notice that the amended definition deals
with the first limb of Section 2(e),3 and the second
exclusionary limb is the same in the pre- and post-
amendment provisions. Construing Section 2(e), the second
limb begins with the words “but does not include” any such
person (i) who holds a post under the Central Government,
(ii) a State Government, (iii) is governed by any other Act or
(iv) by any Rules providing payment of gratuity. The
exclusionary clause, if read by applying the golden rule
without a further test, excludes employees of the Central
and State Governments from the meaning of “employee”
under the PG Act. Secondly, it also excludes a person who is
governed by any other act. Thirdly, even if it is used as “or”
but not as “and”, it excludes any such person who is
governed by any other Act or by any rules providing for
payment of gratuity. The provision contains the words both
“means” and “does not include”. Under interpretation of
statutes, this Court has repeatedly held that coupling the
word “means” with “includes” denotes an exhaustive
definition.4 Conversely, the word “means” and “does not
include” should be read as exclusionary language that
strictly excludes the scope of the provision from certain
classes. Consequently, a person who is governed by any
other Act, or governed by any Rules providing for payment of
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gratuity, does not come within the ambit of the definition of
“employee” under the PG Act.”
16. Placing reliance upon the judgment of the Hon'ble
Supreme Court in the case of N. Manoharan (supra), the learned
counsel for the State would submit that the petitioners cannot claim
benefit under two different statutes for the same purpose and would
submit that on account of the facts and circumstances of the case, the
writ petition deserves to be dismissed.
17. The learned counsel for the University/respondent nos.2 &
3, Mr. C.S. Rawat, Advocate, would submit that the university is under
the umbrella of the State Government and is under the financial
control of the State Government, and it is bound to follow all the rules,
regulations and directions of the State Government.
He would further submit that the university would be
under the obligation to make such payment as directed according to
finances made available by the State Government.
18. After having heard the learned counsel for the parties and
having gone through the record, the moot question that falls for
determination in the present writ petition inter-alia would be:
Whether the prior judgments of this Court/Hon’ble
Supreme Court dated 01.11.2017 and 18.11.2021
respectively for payment of gratuity with respect to the
identically situated employees of the university would be
judgments in rem or in personam?
The determination of this question will have a material
bearing on the final outcome of the instant writ petition.
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19. On one hand, the learned Senior Counsel for the
petitioners would submit that the aforesaid judgments dated
01.11.2017 and 18.11.2021 would be judgments in rem, whereas the
learned State Counsel has vehemently argued that they are judgments
in personam.
20. A perusal of the judgment of the learned Single Judge of
this Court dated 01.11.2017 would reveal that it was categorically held
therein that since the university did not seek exemption under Section
5 of the Payment of Gratuity Act, therefore, the university is bound to
pay the gratuity to the employees. The members of the petitioners'
association are also identically situated inasmuch as they had also
opted for retirement at the age of 60 years and by virtue of G.O.
No.4026 dated 19.12.1984, they would not be entitled to the benefit of
payment of gratuity. However, since the learned Single Judge had come
to the conclusion that the university failed to seek any exemption,
hence it was bound to pay gratuity under the Payment of Gratuity Act,
and the Hon’ble Supreme Court has also clearly held that merely
exercising of option by an employee for obtaining the benefit of
extension of age of retirement to 60 years could not have operated
against the employee to deny gratuity, thus, we come to an inescapable
conclusion that the aforesaid judgments of the High Court and the
Hon’ble Supreme Court dated 18.11.2021 and 01.11.2017 would act
as judgments in rem.
21. Thus, the learned Senior Counsel has correctly placed
reliance on the judgment of the Hon’ble Supreme Court in the case of
Arvind Kumar Srivastava (Supra). Therefore, on this count, we come to
the conclusion that the judgment of the learned Single Judge of this
Court dated 01.11.2017 and the Hon’ble Supreme Court dated
25
18.11.2021 would be judgments in rem and not judgments in
personam, and therefore, petitioners would be entitled to the benefit of
those earlier judgments rendered in cases of identically situated
employees of the university.
22. Now, the other questions that have been raised by the
learned State counsel need determination. So far as the point regarding
"the association cannot file the petition" is concerned, the judgment
cited by the petitioners in the case of B. Srinivasa Reddy vs. Karnataka
Urban Water Supply & Drainage Board Employees’ Association and
others, reported in (2006) 11 SCC 731(II) is distinguishable on facts
since in that case a writ petition filed by unregistered Trade Union or a
Trade Union whose registration was cancelled, and also having filed
the petition without disclosing all the material particulars, was held to
be not maintainable. The present case is on a totally different footing
as petitioners’ association members have approached the Court with
full disclosure.
23. Reliance placed on behalf of the learned State Counsel in
the case of Chairman/Managing Director, U.P. Power Corporation Ltd.
(supra) is thoroughly misplaced since in para 13 thereof too the
principle of judgment in rem has been reiterated by placing reliance
upon judgment in the case of Arvind Kumar Srivastava (supra).
24. The judgment of the Hon’ble Supreme Court in the case of
N. Manoharan (supra), relied upon by the learned State Counsel, would
also not be attracted, in as much as in that case, the benefit of
Gratuity Act was sought under two different statutes. The instant case
is a totally different case and distinguishable on facts as there is no
question of deriving of benefit of gratuity under two different statutes.
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25. So far as one of the argument about court fee is concerned,
court fee has been paid on behalf of all the members of petitioner
samiti, hence the objection on this count too fails.
26. So far as the State of U.P. being a necessary party, such
an argument also does not hold water, in as much as in the impugned
G.O. dated 27.09.2022 of the State, there is no reference therein that
the rejection is on account of the financial implication being that of the
State of U.P.
27. Thus, in view of the aforesaid facts and circumstances and
on account of previous judgments dated 01.11.2017 and 18.11.2021 in
respect of similarly situated employees of the University being in rem,
the present writ petition deservers to be allowed.
28. The impugned G.O. dated 27.09.2022 and consequential
office order dated 31.10.2022 are hereby quashed.
29. A writ of mandamus is issued to the State to make
payment of gratuity along with 6% interest individually to each
member of the petitioner samiti in the light of the judgment of this
Court dated 01.11.2017 and subsequently affirmed by Hon’ble
Supreme Court vide judgment dated 18.11.2021.
30. The writ petition is allowed in the aforesaid terms.
(Siddhartha Sah, J.) (Ravindra Maithani, J.)
01.09.2026 01.09.2026
Akash