JUDGMENT :

MAULIK J.SHELAT, J.

1. With the consent of the learned advocates appearing for the respective parties, the present matter is taken up for hearing.

2. Heard Mr. Samir B. Gohil, learned advocate for the petitioner, Ms. Forum Sukhadwala, learned AGP for respondent – State as also Mr. Monarch Pandya, learned advocate for Mr. Hriday Buch, learned advocate for respondent No.3.

3. The present petition is filed under Articles 14, 16 and 226 of the Constitution of India, seeking the following reliefs:-

“A) Quashing and setting aside the impugned decision dt.6.6.2017 and directing the respondents to fix and pay pension and pensionary benefits on the basis of last drawn salary of the post “Nayak’ and further directing the respondents to pay arrears with 9% interest.

B) Directing the respondents to pay 9% interest of delay payment of retirement befits from the retirement till the day of actual payment

C) During the pendency and final disposal, the respondent may be directed to fix and pay pension on the basis of last drawn salary of the post “Nayak”.

D) To grant such and further relief as may be deemed fit and proper.”

SHORT FACTS

4. The petitioner was appointed as Ad-hoc Sweeper on 06.09.1975 and thereafter, appointed as regular Sweeper on 08.10.1975 in respondent No.3 – Keshod Nagarpalika - Municipality. Since the post of ‘Nayak’ fell vacant in the year 1994, petitioner, being senior most person, applied for the said post; consequently, respondent No.3 – Municipality, vide its order dated 16/17.02.1994 appointed the petitioner to the post of ‘Nayak’. The petitioner came to be superannuated on 31.10.2013 from the post of ‘Nayak’. Nonetheless, petitioner is receiving the pension as available to Class-IV post, instead of Class-III as the post of ‘Nayak’ is Class-III post.

4.1 The respondent - Municipality appears to have sent the proposal to Collector, in turn, forwarded to Director of Municipality to regularize the appointment of the petitioner from retrospective date as no formal approval / sanction of the Director of the Municipality was obtained at the time of his actual appointment. It further appears that Director of Municipality vide its order dated 06.06.2017 refused to grant such sanction and accordingly, proposal of the Municipality was turned down. Accordingly, the petitioner was informed by the Municipality vide its letter dated 05.07.2017.

4.2 The petitioner appears to have gathered requisite documents and approached this Court seeking the aforesaid reliefs.

SUBMISSIONS OF THE PETITIONER

5. Mr. Samir Gohil, learned advocate for the petitioner would submit that the petitioner came to be appointed to the post of Class-III and retired from such post and therefore, he is entitled to receive pension as available to Class-III instead of Class-IV. It is submitted that any approval which was required to be obtained from the respondent – Municipality and if not taken by the Municipality, no fault can be found with the petitioner for such lapse. It is further submitted that once the petitioner served and retired from the post of Class-III, he is entitled to receive pension as available to Class-III employee.

5.1 Mr. Gohil, learned advocate would further submit that, though the petitioner retired from service on 31.10.2013, he has received the pension from August, 2015 and there is a delay in making the payment of pensionary benefits for which, petitioner is entitled to receive interest for such delay payment as well as interest on the difference of the pension amount.

5.2 To buttress his arguments, he has relied upon the decision in the case of Rekhaben Gordhandas Nathwani Vs. Cheif Officer & Ors. rendered in SCA No.1441 of 2015, dated 28.12.2017.

5.3 Making the above submissions, Mr. Gohil, learned advocate for the petitioner would request this Court to allow the present petition.

SUBMISSIONS OF RESPONDENT NO.3- MUNICIPALITY

6. Per contra, Mr. Monarch Pandya, learned advocate for Mr. Hriday Buch, learned advocate would submit that unless the s