1. The captioned two Second Appeal arise out of common judgment and order dated 5th February, 1999 passed by learned IInd Extra Assistant Judge in Regular Civil Appeal being Appeal No.14 of 1996 and No.7 of 1996 preferred by original defendant No.5 State of Gujarat, and original defendant No.1 Gram Panchayat, Moviya, in Regular Civil Suit No.157 of 1986 instituted by two plaintiffs. In the suit the plaintiffs-employees claimed declaration for entitlement for the pay scales as per the Pay Commission’s Award.

1.1 Original defendant No.5 State of Gujarat is the appellant in Second Appeal No.124 of 1999, and original defendant No.1 Gram Panchayat is the appellant in Second Appeal No.45 of 2001. They have challenged the impugned judgment and order of the first appellate court rejecting their abovementioned respective appeals.

2. Both the appeals came to be admitted on the following common substantial questions of law formulated by the court.

(i) Whether the decision rendered by the Supreme Court in State of Gujarat vs. R. K. Soni reported in AIR 1984 SC 161 is applicable to the present case or not, and whether the respondents are part of Panchayat Services?

(ii) Whether in the facts and circumstances of the case both the courts below have erred in holding that the suit is maintainable without giving statutory notice to the defendants under section 80 of CPC as the action denying to give benefit of Sarala and Desai Pay Commission award to the plaintiffs is unconstitutional and without jurisdiction?

(iii) Whether both the courts below have erred in reviewing the judgment and decree passed by the lower court in Regular Civil Suit No. 157 of 1986 when it was dismissed earlier as there was apparent error on the face of record of the case?

3. The relevant facts in the backdrop and with reference to which the aforesaid substantial questions of law arise, may be set out in the beginning.

3.1 The Civil Suit was instituted before the Court of Civil Judge (S.D.), Gondal, District Rajkot. The two plaintiffs –

(i) Wagheji Odhavji Garala and

(ii) Bai Ujeeben Naranbhai, prayed for declaration and injunction that the action on part of the respondents in withholding the Pay Commission benefits and in paying fixed salary was illegal. A direction was sought against defendants to require them to work out fixation of salary and to pay all consequential benefits to the plaintiffs from date of their appointment. It was the case that plaintiff No.1 was serving as a Fitter in the Water Works Department under the defendant No.1-Movaiy Gram Panchayat, whereas plaintiff No.2 was a Safaiwala in the same Panchayat. It was the case of the plaintiffs that as they were full time employees of the Gram Panchayat, they were entitled to pay scale of Rs. 260-400 and Rs. 196-232 as per Desai Pay Commission respectively. It was averred that Sarala Pay Commission was brought into force from 1967 and thereafter Desai Pay commission was made effective from 1.1.72. It was the case that since the plaintiffs were serving in the organisation of Panchayat since more than 20 years, they ought to have been paid the salary as recommended by the Pay Commission and not the fixed amount as they were being paid.

3.2 In the various averments and in the plaint, a case was pleaded that the plaintiffs who were the Panchayat employees, were required to be treated at par in the matter of pay scale with the employees of the State Government and ought to have been given the pay scales in as per the Pay Commission scales. Reliance was placed on decision in R. K. Soni Vs. State of Gujarat (AIR 1984 SC 161). It was contended that Gram Panchayat adopted a hostile approach in not availing the said benefits to the plaintiffs.

3.3 The original suit was instituted by the two plaintiffs. However, during the pendency of the Second Appeals, plaintiff No.2 Ujiben Naranbhai died. No heirs of said plaintiff No.2 Ujiben Naranbhai are brought on record.

3.4 Defendant No.1 Gram Panchayat in its written statement