R.R.K.Trivedi, J. - (1.) In Civil Misc. Writ Petition No. 21561 of 1998, a learned Single Judge noticed contrary views expressed by two Division Benches. Consequently, he referred the matter to Hon'ble the Chief Justice by order dated 9th July, 1998 for constituting a Larger Bench to resolve the conflict. Hon'ble the Chief Justice by order dated 23rd July, 1998 constituted this Full Bench to resolve the controversy and thus this bunch of Writ Petitions has come before us.
(2.) Before coming to the controversy, which is subject-matter of consideration before this Full Bench, it is necessary to look into the backgrounds in which the dispute has arisen.
(3.) Petitioners are teachers serving in Government aided private educational institutions. There was disparity in service conditions of the teachers serving in Government run institutions and those serving in Government aided private educational institutions. Government of India appointed Secondary Education Service Commission, which made certain recommendations for removing disparity. On basis of these recommendations. State of Uttar Pradesh initially introduced a scheme known as "Triple Benefit Scheme' and framed Rules known as 'Uttar Pradesh Aided Educational Institutions Employees Contributory Provident Fund, Insurance, Pension Rules, 1964' which came in effect from 1st October, 1964. In pursuance of the aforesaid Rules, Government Order dated 17-12-1965 was issued for implementing the Scheme under which the benefits of (i) contributory provident fund, (ii) special life Insurance, and (iii) pension including the family pension were to be given to all the teachers serving in the State aided primary schools, Junior High Schools, Higher Secondary Schools, Degree Colleges, Training Colleges etc. However, the pensionery benefits under the above Triple Benefits Scheme were still not at par with pensionery benefits admissible to teachers serving in Government institutions. To remove this disparity and in order to provide the same pensionery benefits to the teachers of Government Aided Private Institutions which were admissible to Government teachers, State of Uttar Pradesh issued Government Order dated 31st March, 1978. However, as the age of superannuation in case of teachers serving in Government colleges was 58 years, the teachers serving in Government Aided Private Institutions were asked to opt for the age of superannuation at 58 years for getting the pensionery benefits at par with the teachers serving in Government Colleges. Government Order inviting such option was issued on 10-8-1978. Under this Government Order if teacher opted to retire at the age of 58 years, he was to get death-cum-retirement gratuity along with other pensionery benefits. For giving effect to this scheme, Rules known as "U.P. State Aided Secondary Schools 'Teachers' Death-cum-Retirement Benefit Rules" were published on 29-8-1991. In pursuance of this Government Order, options were exercised by some teachers. However, large number of them could not exercise options. By Government Order dated 6-10-1990, a second opportunity was given to the teachers to exercise option. This order dated 6-10-1990 was further clarified by Government Order dated 4-11-1991 a fresh opportunity was given to teachers to exercise option within 90 days from the date of the order. When these two orders namely 6-10-1990 and 4-11-199) came in existence some of the teachers who had already opted to retire at the age of 58 years in pursuance of the order dated 10-8-1978 again exercised option to retire at the age of 60 years or made applications to withdraw the options already given. Some of the teachers who had submitted options in pursuance of order dated 6-10-1990; after coining into existence of order dated 4-11-1991 again submitted fresh options expressing their desire to retire at the age of 60 years. In these circumstances, controversy arose as to whether the option once exercised by a Teacher could be changed, modified or withdrawn subsequently. The authorities of the Education department took the view that option once exercised was final and could not be changed or modified subsequently, which was challenged by teachers by filing several Writ Petitions before this Court. A Division Bench while deciding Smt. Kamla Sharma v. Deputy Director of Education and Ors., Special Appeal No. 482 of 1993 [reported in (2000) 2 UPLBEC 1375] held that option exercised by teachers could be changed. The relevant portion of it is being reproduced below- "We are unable to accept the submission of the learned Counsel that the second G.O. dated 4-1-1991 did not permit the petitioner to exercise a second option. The G.O. says that there was some anomaly in the language used in the various Government Orders issued in the year 2978 and on 6-10-1990 and, therefore, most of the teachers in the State could not exercise their option due to confusion and, therefore, a fresh opportunity was being given to them to exercise option within 90 days. This could never be the intention of the G.O. that, though there was ambiguity those teachers who had exercised option in pursuance of the G.O. dated 6-10-1990 could not exercise their option again while those who had not at all exercised their option due to ambiguity could exercise their option. Such an interpretation would render the G.O. dated 4-1-1991 wholly arbitrary. In our opinion, the G.O. gave a right to all the teachers to exercise their option again as the Government itself was of the view that the earlier G.O. in this regard were not clear and there was ambiguity in their language. We are further of the opinion that the G.O. should not be interpreted in a very technical manner. In Devi Krishna Goyal v. DIOS, Ghaziabad, (1990) 13 Administrative Tribunals Cases 155, the Supreme Court ruled that notwithstanding a condition in the G.O. to the effect "option once used will be deemed to be final"--the option could be withdrawn prior to its acceptance. We are, therefore, clearly of the opinion that as the Writ Petition had exercised a second option on 4-1-1992 withdrawing her earlier option dated 24-10-1990, it was not open to the Deputy Director of Education to have accepted her first option by passing an order to that effect on 15-9-1992. Therefore, the writ Petition of Smt. Kaushal Varshney was rightly allowed by this Court.";