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3. Counter and rejoinder affidavits have been exchanged and a personal affidavit has also been filed by the respondent No.1.

Submission of the petitioner:-

4. Learned counsel for the petitioner submits as under:

(i) In terms of para-2 of the Government Order No.4376/15-8-90-3003-(8)/90, dated 06.10.1990 as amended by Government Order No.19/15-9-91/3003 (78)/90, dated 04.11.1991, the option for retirement with gratuity stood automatically exercised. Since the petitioner suffered brain haemorrhage in February, 2009 and became incapacitated to discharge his duties as teacher and as such, in terms of Rule 11(3) of the "mRrj izns'k jkT; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa ds v/;kidksa dh e`R;q rFkk lsok fuo`fRr vkuqrksf"kd fu;ekoyh] 1981" (hereinafter referred to as 'the Gratuity Rules'), he moved an application for voluntary retirement on 01.08.2009 which was accepted and the petitioner was voluntarily retired w.e.f. 31.10.2009. Thus, the benefit of gratuity was payable to the petitioner, which has been illegally denied by the State-respondents.

SUBMISSIONS OF STATE-RESPONDENTS:-

5. Sri I.S. Tomar, learned standing counsel submits as under:

(i) Since the petitioner has not exercised option for payment of gratuity in terms of the Government Order No.2523/15-8-2070/77 dated 10.08.1978 and in terms of Rule-3, the petitioner has not submitted the option within six months of the enforcement of the Gratuity Rules, therefore, gratuity is not payable to the petitioner.

(ii) In terms of the Government Order No.395/15-8-99/3003 (78) 98 dated 17.02.1999, the petitioner was required to submit his option for retirement on 1st July before one year from 30.06.2011 i.e. on 01.07.2010 but he has not submitted any option. Therefore, gratuity is not payable to him.

GRATUITY TO TEACHERS OF AIDED HIGHER SECONDARY SCHOOLS:-

11. The Government Order No.5310/15-8-8-3004 (2)/ 1974, dated 31.03.1978 was issued by the State Government extending the benefits of pension and gratuity to teachers of aided Higher Secondary Schools who retire on or after 01.03.1977. Subsequently, the State-Government issued another Government No.2523/15-8-3070/77 dated 10.08.1978 providing that if a teacher gives an option for retirement at the age of 58 years then he shall be entitled for gratuity. Subsequently the Uttar Pradesh Rajya Sahayata Prapt Uchchatar Madhyamik Vidylayon Ke Adhyapkon Ki Mrityu Tatha Sewa Nivritti Anutoshik Nyamawali, 1981 was enacted by Notification No.3218/15-8-3070/77 dated 29.08.1981 w.e.f. 30.06.1978 (hereinafter referred to as 'the Gratuity Rules'). Rule 11 of the Gratuity Rules provides for eligibility of a teacher for gratuity as under:

12. The aforesaid Gratuity Rule was followed by the afore-quoted Government Order dated 24.06.1983 specifically providing for voluntary retirement.

13. It appears that the State Government felt that large number of teachers could not submit their option and, therefore, a G.O. No.4376/15-8-90-3003(8)/90, dated 06.10.1990 was issued providing that if an option is not submitted within 90 days then it shall be presumed that the concerned teacher/ non-teaching employee have opted to retire at the age of 58 years. The aforesaid Government Order dated 06.10.1990 is reproduced below: