Sunil Ambwani and Dilip Gupta, JJ.
1. Heard Shri Gaurav Kakkar, learned Counsel for the petitioner. Learned Standing Counsel appear for the State respondents. Shri. P.S. Baghel has led appearance on behalf of University of Allahabad and has filed a counter affidavit.
2. This writ petition raises an important question of law. as to whether the option of an employee, who had in terms of Government Order dated 24.12.1983, opted to continue in service upto the age of 60 years, instead of 58 years as a teacher in the University, and had given up of his rights to receive Death-cum-Retirement Gratuity (D.C.R.G.) by exercising option after depositing the Contributory Provident Fund will continue to bind him posthumously if he does not survive to avail (he benefit to continue in employment upto 60 years.
3. Brief facts giving rise to this writ petition are that late Shri Amar Nath Kakkar born on 6.3.1946 was appointed as Lecturer, Department of Defence Studies in the University of Allahabad on 28.8.1968 at the age of twenty two years' and five months. He was confirmed on 9.8.1970 and earned promotions rising to the post of Professor and Heard, Department of Defence Studies in the University. The University of Allahabad at that time was funded by the State Government, and was subject to administrative control of the Department of Higher Studies, Government of U.P.
4. By a Government Order dated 24.12.1983 the State Government decided to improve the service conditions of the employees and raised the retirement age from 58 to 60 years. Those teachers, who did not want to continue upto 60 years, were given an option to retire at the age of 58 years with the benefits of Death-Cum-Retirement Gratuity (D.C.R.G.), pension, family pension, and general provident fund. The teachers, who did not opt to retire at the age of 58 years and wanted to avail two years of additional service upto the age of 60 years, were not to be provided with the benefit of Death-Cum-Retirement Gratuity. The other benefits namely pension, family pension and general provident fund were to be made available to both the categories of employees.
5. Late Shri Amarnath Kakkar opted to continue upto the age of 60 years. His option was accepted by the University. Unfortunately he died in an accident while serving as Head, Department of Defence Studies on 5.1.1991 at the age of 45 years. His wife Smt. Ranjana Kakkar the petitioner before us is also serving in the University a Reader, in Medieval & Modern History Department. She was authorized family pension of Rs. 1575/- per month w.e.f. 6.1.1991 to 5.1.1998 and thereafter at Rs. 788/- per month from 6.1.1998 till her death, or re-marriage whichever is earlier. The order of the Assistant Registrar authorizing family pension to the petitioner stated that the contribution of the University towards Contributory Provident Fund Account of late Dr. A.N. Kakkar was deposited in Local Government Treasury by cheque No. 685259 dated 7.4.1992 on 11.5.1995.
6. The petitioner made a representation to tin Vice Chancellor of the University stating that her husband had opted to continue in service upto the age of 60 years, foregoing the benefit of D.C.R.G. He could not survive to take the benefit as he passed away on 5.1.1991 m an accident. She was informed by the Finance Officer that in View of b M husband's option, she was not entitled to D.C.R.G payable to him. She found it difficult to accept the reasoning given by the University authorities, Prof. Kakkar could not avail the benefit of extra two years of service beyond the age of 58 years due to his untimely demise and since he passed away at the age of 45 years only, he could not be denied the benefit of D.C.R.G on the ground of an option given an event which did not happen. He passed away much before attaining his normal retirement age and thus his option though given earlier could not materialize. Shri A.N. Seth, the then Registrar by his letter dated 12.5.2000 rejected her representation on the ground that as per Government Order dated December 24, 1993, there was no provision which could permit a teacher to change the option and thus it was not possible to give her any relief.
7. In the counter affidavit of Shri V.K. Singh, Legal Assistant, Allahabad University, Allahabad, it is stated in paragraphs 8 to 17 that Prof. Kakkar had given his option to retire at the age of 60 years, and thus he was entitled for the benefit of family pension and general provident fund. He was not entitled for D.C.R.G. This additional benefit was admissible only to those teachers, who had not given their option. His option could not be changed and that there was no provision in the Government Order to change it after the death of the concerned teacher.
8. The Government Order dated 24.12.1983 was issued to implement a policy decision taken by the State Government on the presentations of U.P. State Universities Teachers Association to provide them social security. All those teachers, who had retired on or after 1.1.1994 in the Universities regulated by the U.P. State Universities, Act, 1973, and were appointed rgularly on substantive posts, were given option to retire at the age of 58 years after exercising an option with the, benefit of pension, Death-Cum-Retirement Gratuity (DCRG), family pension and general provident fund; and those, who opted to retire at the age of 60 years were provided with only pension, family pension and genera! provident fund he options were invited upto a date fixed in the Government Order. Clause 2.7 of this Government Order provided that those teachers, who opted for tearing at the age of 60 years, the pension for them will be calculated only upto the age of 58 years but that they will not be entitled to D.C.R.G. Clause 3 provided for giving option within 90 days of the issuance of the Government Order. All the teachers who were required to give options, were to clearly state whether, they would like to continue under the Contributory Provident Fund scheme or would like to opt for pension, death-cum-retirement gratuity, family pension and general provident fund scheme, or, pension, family pension and general provident fund scheme.
9. A government Order dated 21.8.1900 was issued in continuation with the earlier Government Order dated 24.12.1983, providing that for certain unforeseen circumstances some teachers could not avail the benefits provided in the Government Order dated 24.12.1983, and have made a demand that they should also be given an opportunity to the benefits. Since the time period prescribed in the Government Order has expired, the Governor after giving sympathetic consideration to their demand, once again provided an opportunity to submit options forms within 90 days from the date of issuance of Government Order i.e. 21.8.1990. Those teachers, who could not give their option earlier and did not give their options in the extended period provided by the Government Order, will be treated to have given option to retire at the age of 58 years provided they were eligible for such benefit. The Finance Officer of the University, by an Office Memorandum dated 21.8.1990 and 24.12.1983 giving special information that those teachers, who had retired after 1.11994 and have not given option for any reasons under Government Order dated 24.12.1993, could still give their options upto 18.11.1990. It was however clarified in paragraph-1, of this Office Memorandum that those teachers, who had given their options cannot change their options or modify it by giving a second option. Para-2 of this Office Memorandum provided that those, who had not given their options earlier and do not give any option upto extended date of 18.11.1990, shall be treated to be willing to be retired at the age of 58 years, with all benefits including gratuity.
10. The scheme of the Government Orders dated 24.12.1983 and 21.81990 was to give the benefit of the extended age of retirement from 58 years to 60 years subject to the conditions that those teachers, who will retire at age of 58 years, will not be given benefit of D.C.R.G. and those, who want to take benefit of two years additional service, will get the calculation of pension only upto age of 58 years. These benefits, as it is stated in the opening paragraph of the Government Order dated 24.12.1983, were given for the purposes of providing social security to the teachers. These benefits were available to only those who could live up to the date of their superannuation to avail these benefits. For those, who unfortunately could not reach the age of 58 years, could not be taken to be covered by the scheme.
11. The providence to survive upto the age of 58 years could not be known to the teachers exercising options. The God has not yet bestowed the man with the powered to foresee of to predict death. The man arranges his affairs in accordance with the wisdom given to him by God. The Almighty has reserved the powers of sustaining and guiding human destiny. No one, who was required to give an option under the scheme, could have predicated whether he would survive to claim the benefits.
12. Where an event cannot be foreseen and a person is invited to give options with the understanding to arrange his affairs according to his own wisdom, his choice should not be allowed to work to his disadvantage after his death. He should be provided with the maximum of the benefits and social security after his death. Late Prof. Amarnath Kakkar did not live beyond the age of 45 years. He may have planned for his affairs upto the age of 60 years, both for himself and his family. The God however willed otherwise. His untimely death made his option unworkable. In order to give him maximum benefits of the social security, which was the intention of the Government Order Dated 24.12.1983, he could not be denied the D.C.R.G. payable to him and calculated upto to his death, for the completed years of service rendered by him to the University. His life was cut short and thus his option became unworkable and futile, on his death at the age of 45 years. He could not be pinned down to his option by the University, to deprive his family of the gratuity earned by him and payable to his family.
The 'gratuity' is defined in Webster's New Collegiate Dictionary as something given voluntarily, or beyond obligation usually in return for, or in anticipation of some service. The Black's Law Dictionary defined gratuity as 'a recompense or reward of service or benefits given voluntarily without solicitation or promise'. Late Amarnath Kakkar could have given up gratuity voluntarily on his option, if he had the occasion to avail the benefit of two years additional service. When he could not avail the benefit and was not in a position to change his option, he cannot be denied the reward by way of gratuity payable to him on completing 58 years of service. The event provided in his option i.e. the extended service upto the age of 60 years, became an impossibility to be performed by him and thus his option would be deemed to be revoked in law, on the principles of frustration of contract.
13. The writ petition is allowed. The order dated 12.5.2000 passed by Registrar of the University of Allahabad is set aside. The State of U.P. and the University of Allahabad (now a Central University) carrying the responsibilities of the erstwhile University of Allahabad are directed to calculate and to pay the Death-Cum-Retirement Gratuity payable to late Prof. Amarnath Kakkar to the petitioner, upto the time of his death in this writ petition within a period of three moths from the date a certified copy of this order is produced before them. The petitioner will also be entitled to Rs. 5000/- as costs of pursuing this writ petition.