Judgment

HANSARIA, J.:- Leave granted.

2. The State of Uttar Pradesh formulated a new scheme of pension and provident fund of the employee of Aided Degree Colleges of the State Service. This was made effective by Government Order (G.O.) dated 24-8-80. This G.O. came to be issued on the demand of the teachers of various aided educational institutions including Degree Colleges for better terminal benefits like pension and death-cum-retirement gratuity. One of the points urged in support of the claim was that similarly situated teachers in Government Colleges were better off in this regard and there was no reason to treat the other teachers differently. It was urged that the two categories of teachers being similarly situated the difference was discriminatory as well. It however deserves notice at the threshold itself that. the retirement age of aided colleges teachers was (and is) 60 years, whereas in Government colleges the retirement age is 58 years which is at par with the retirement age of other Government servants.

3. The G.O. made available two packages leaving it to the teachers concerned to opt for one of these. One option was to retire at the age of 60 years in which case pension as available to Government colleges teachers would be available; so also general provident fund. They would not however get gratuity. Those who would opt to retire at 58 years would get death-cum-retirement gratuity also along with aforesaid two benefits; so too family pension.

4. It seems that most of the members of the U.P. University Colleges Pensioners Association, respondent here, for short the Association, opted for first package. They have however felt aggrieved at the denial of gratuity; so also with computation of pension by taking the last pay drawn on completion of 58 years even though they continued (and continue) in service till completion of 60 years. The Association challenged the aforesaid G.O. on these counts before the High Court of Allahabad. Some grievance was also made at the denial of commutation of pension which facility was made available by G.O. dated 19-12-88 making it effective from 14-8-88. The Association desired making available of this facility even to the retirees prior to 14-8-88.

5. The High Court has directed the State to give the benefit of pension on the last emoluments drawn at the age of 60 years and also to make available the benefit of gratuity. Another direction given is to give benefit of commutation to the teachers who had retired prior to 14-8-88. Feeling aggrieved, the State has approached this Court under Art. 136 of the Constitution.

6. Shri Yogeshwar Prasad, learned senior standing counsel for the State, contends that by no token the teachers of aided colleges could have been placed in better situation than the teachers of Government colleges; but this is effect of the judgment of the High Court inasmuch as the aided colleges teachers would, even while retiring at the age of 60 years, get pension on the basis of the last pay drawn, so also gratuity whereas the Government college teachers would retire at the completion of 58 years of age and their pension would be calculated accordingly. Another submission made in this. regard is that members of the Association having opted for the first package it does not lie in their mouth to resile from the terms of the package. Learned counsel rightly submits that one cannot blow hot and cold at the same time; or approbate and reprobate simultaneously. There being two packages, a third Package could not have been formulated by the High Court giving best of the terms of the two packages. It is finally contended that insofar as denial of gratuity is concerned no grievance can be made by the Association inasmuch as aided colleges teachers whose age of retirement is 60 years cannot be said to be similarly situated to Government teachers who retire at the age of 58 years. The denial cannot be said to be discriminatory according to the learned counsel. As to the grant of