Hon’ble Arun Tandon, J.—Learned Single Judge vide order dated 20.8.2009 has referred the following questions of law, to a Larger Bench of this Court, in view of the doubts expressed qua the legal position as stated by another learned Single Judge in his judgment dated 30.1.2009, passed in the case of Roop Chandra v. State of U.P. and others (Writ Petition No. 52720 of 2007).

“(a) Whether the Government Order dated 19th April, 2006, as explained by the Government Order dated 23rd November, 2007, is valid and being prospective in nature will have no application to the employees who retired prior to the date of issuance of the Government Order.

(b) Whether an employee, who had opted for retiring at the age of 60 years, like the petitioner, without availing the benefit of gratuity, can now be permitted to turn around and claim gratuity after his retirement in view of the Government Order dated 19th April, 2006.”

2. Under order of the Hon’ble The Chief Justice dated 4.9.2009 this Bench has been constituted for answering the reference so made.

3. Before adverting to the legal issues involved, it would be worthwhile to refer to the facts, giving rise to the proceedings, in short.

4. Petitioner of Writ Petition No. 43208 of 2008 was employed as Head Clerk in Bhagirathi Arya Kanya Inter College, Lalkurti, District Meerut. After attaining the age of 60 years, he retired from service on 31.8.2005. Similarly, petitioner of Writ Petition No. 43209 of 2009 was employed as Head Clerk in Sri Mahaveer Shiksha Sadan Inter College, Jain Nagar, District Meerut and retired from service on 31.7.2005 after attaining the age of 60 years. In accordance with the terms and conditions applicable at the time of their retirement, petitioners were sanctioned post retiral benefits, which did not include gratuity.

5. At the relevant time a Class-III employee had the option to seek retirement at the age of 58 years with pensionary benefits including payment of gratuity or to retire at the age of 60 years with pensionary benefits without gratuity. It is admitted on record that the petitioner did not opt for retiring at the age of 58 years. Petitioner in fact retired at the age of 60 years. He has been paid is retiral dues, which did not include gratuity in terms of the provisions application and there is no dispute in that regard.

6. The State Government by means of Government Order dated 19th April, 2006 took a decision to withdraw the facility of option which was earlier provided to the employees qua retirement at the age of 58 years with the gratuity, or for retiring at the age of 60 years without gratuity. It is now provided that all Class-III employees shall retire at the age of 60 years with the benefit of gratuity. The position whereof has further been clarified vide Government Order dated 23.11.2007, providing that the said benefit shall be available only to the Class-III employees who retire on or after 19.4.2006.

7. On the strength of the Government Order so issued, the petitioner, set up a claim for payment of gratuity, as has been provided to the employees retiring subsequent to April, 2006 and in support thereof he placed reliance upon the judgment of the learned Single Judge in the case of Roop Chandra v. State of U.P. and others, passed in Writ Petition No. 52720 of 2007 decided on 30th January, 2009. In the said case the Single Judge has held that the benefit of the Government Order dated 19th April, 2006 cannot be denied to the employees who retired prior to 19.4.2006 and a mandamus has been issued directing the State respondents to grant the benefit of the Government Order dated 19.4.2006 to the employees like the petitioner also w.e.f. 19.4.2006.

8. The Single Judge has placed reliance upon the judgments in the cases of Shanti Devi (Smt.) v. State of U.P., 2001(4) ESC 1589, Smt. Akhtari Begum v. Director of Education, Rajmuni Devi v. District Inspector of Schools, Ghazipur and others, 2002(1) ESC 136, D.S. Nakara v. Union of India, 1