By the Court.—Heard Sri Upendra Singh, learned counsel for the petitioner and Sri M.C. Tripathi, learned Additional Chief Standing Counsel for the State.

2. The petitioner while working as lecturer in the Institute of Engineering and Rural Technology, Allahabad attained the age of superannuation of 60 years on 1st February, 2004 but was given the advantage of continuance in service, till the end of current academic session, therefore he actually retired on 30th June, 2004. Since the petitioner has been denied gratuity, he has approached this Court under Article 226 of the Constitution of India.

3. The petitioner urges that he having given the option for retirement at the age of 60 years, he is entitled for the gratuity but the respondents have denied the said benefit.

4. Learned counsel for the State, in response, submitted that the petitioner has not given his option on or before 1st July, 2003 i.e. one year before the date of retirement, therefore, he is not entitled to the aforesaid benefit of gratuity. Submission of the respondents is, that as per the Government Order dated 25th May, 2002, this option was to be given, one year before the date of retirement whereas admittedly the petitioner had given his option on 8th May, 2004.

5. Learned counsel for the State has drawn our attention to the order dated 15th June, 2006 passed by the Finance Controller Technical Education Directorate U.P. at Lucknow which refuses the award of gratuity to the petitioner on the aforesaid ground.

6. It is the admitted case of both the parties that initially the age of retirement of teachers in the institution like the present one was 58 years. This age of 58 years was enhanced to 60 years with an option to the teachers to either opt for retirement at the age of 58 years and obtain gratuity or to work for extended period up to 60 years without the benefit of gratuity.

7. The Government Order of 25th May, 2002 was applicable for the teachers who retire at the age of 58 years and also at the age of 60 years as mentioned above, making it obligatory upon the teachers to opt within the time prescribed for having gratuity.

8. This age of retirement was enhanced from 60 years to 62 years vide Government Order dated 21st February, 2004.

9. A perusal of the aforesaid Government Order, which is on record, shows that the Governor while extending the age from 60 years to 62 years of the teachers of the technical institutions also provided that such teachers, who opt for being retired at the age of 60 years will be entitled for gratuity but those who give their option to work till the age of 62 years will not be given gratuity but will be entitled for pension only.

10. The aforesaid Government Order thus is very clear on the subject of payment of gratuity and pension vis-a-vis the age of retirement chosen by the teacher concerned. The language used in the Government Order dated 21st February, 2004 further makes it abundantly clear that after the enhancement of the age from 60 years to 62 years option was to be given by the teachers concerned to have gratuity or to have pension alone depending on the fact that they seek retirement at the age of 60 years or at the age of 62 years. This option naturally could be given only when the age of retirement was enhanced from 60 to 62 years and when the same was asked for.

11. Any Government Order requiring an option for gratuity or pension with respect to the age of retirement earlier prescribed i.e. 58 or 60 years, would not be sufficient to conclude whether the teacher wants to be retired at the age of 60 years or at 62 years. It was only when the age of retirement was enhanced from 60 years to 62, the occasion, to give an option would arise.

12. This is also evident from the fact that the Government Order dated 21st February 2004 speaks of fresh options in terms of the aforesaid Government Order. It does not say that the option already exercised with regard to the age of 58 or 60 years will be valid for the