JUDGMENT Mr. K. Kannan, J.: - The petitioner had been appointed under the District Board, which on abolition absorbed the petitioner with the Panchayat Samiti. He had joined as Chowkidar with the District Board on 11.09.1950 and having been treated as an employee under the Panchayat Samiti since 16.02.1962, retired from service on 03.09.1991. 2. The grievance of the petitioner is that after he became an employee under the Panchayat Samiti, he had been working as a Toll Post Chowkidar and was entitled to be absorbed when the services of the Panchayat Samiti were provincialized with the Amendment Act 22 of 1973 by introduction of Section 35(4) (a) to the Zila Parishad Act, 1961. The Government had issued instructions on 05.01.1977 setting out classes of person, who were employed in the Panchayat Samiti before 01.04.1973 whose posts were entitled to be provincialized. Toll Post Chokidar’s post was not included and therefore, the petitioner and several other persons similarly situated filed a writ petition No.1838 of 1987 seeking for absorption of service into State service. 3. During the pendency of the writ petition, the petitioner would claim that fresh instructions had been issued on 17.12.1990 by the Financial and Secretary, Haryana Government, Development and Panchayat Department providing that six Toll Post Chowkidars were absorbed in the office of the Deputy Commissioner, Kurukshetra against the vacant posts in the pay scale of Rs.750-940. The petitioner’s claim is that in terms of Clause 6 of the instructions, the benefit of pension, gratuity would also be given to these employees for their service, which they have rendered as on 01.11.1966 or from the date on which they became member of the CPF in the Samiti service, whichever may be, in the Government service. To claim the benefit of pension, the contribution should be deposited in the account of CPF with interest in the Government treasury. 4. The petitioner’s name was included in the employees’ list in B category and class IV employees. Instructions had also been issued on 22.11.1991 to all the Deputy Commissioners in Haryana State regarding the procedure for grant of pensionary benefits to employees of the District Board, Zila Parishads and Panchayat Samiti employees and who had later been absorbed in terms of Government policy and the amendment that had been brought to the Zila Parishad Act, 1961. 5. Instructions had also been issued on 22.11.1991 to all the Deputy Commissioners in Haryana State regarding the procedure for grant of pensionary benefits to employees of the District Board, Zila Parishads and Panchayat Samiti employees and who had later been absorbed in terms of Government policy and the amendment that had been brought to the Zila Parishad Act, 1961. 5. In the written statement filed by the respondent through the Director-cum-Joint Secretary to Government, it is contended that the petitioner had already filed writ petition in C.W.P. No.1838 of 1987 in respect of similar dispute seeking for absorption into Government service and the same has been dismissed on 22.08.1991. The writ petition is consequently barred. It is also contended that the petitioner’s relief for provincialization of service and for grant of all pensionary benefits were made through the writ petition in C.W.P. No.1838 of 1987 and the petitioner cannot seek for the same reliefs through this writ petition. If at all, there had been change in circumstances by the Government instructions through the pendency of the writ petition as mentioned through the policy statement on 17.12.1990, the petitioner could have only amended the prayer in order to file the fresh writ petition. The contention is that the petitioner had not been absorbed at any time and Section 35(4) brought through the Amendment Act of 1973 merely provided that the persons, who had been employees of the Panchayat Samiti would continue to serve on the same posts until absorbed and since there was absorption, the petitioner cannot claim any benefit. It is contended that all employees of the Panchayat Samiti had been absorbed in Government service including Toll Tax Staff except three persons namely the petitioner, Atam Parkash and Purshotam Singh. The petitioner could not be absorbed in the Government service because he did not fulfill the terms and conditions that were introduced on 22.11.1991 but by that time the petitioner had already retired on 03.09.1991. 6. The instruction by the Financial Commissioner dated 17.12.1990 (Annexure P-2) specifically provided that due to abolition of imposition of toll tax under Section 74 of the Panchayat Samiti and Zila Parishad Act, 1961, the entire staff had been absorbed in the office of the Deputy Commissioner on the vacant posts and amongst the list of employees, the petitioner’s name also finds place. The subsequent instruction which was issued on 24.11.1991 actually recognized the fact that the persons, who had filed the writ petitions seeking for absorption in State service were required to be considered favourably and it was merely setting out that the benefit of previous service towards pension, gratuity etc. be given subject to condition that the employees were members of the Contributory Provident Fund and they should have deposited their share of the contribution made by these bodies along with interest in lump sum in the Government treasury. It is immaterial that the petitioner has retired before the issue of instructions dated 22.11.1991 and the benefit of the same was being applied to all persons, who had been employed in the Samiti and were required to be absorbed and ordered as such specifically by the instruction dated 17.12.1990. The petitioner was very much in service at that time when the said instructions were issued (Annexure P-2). It is not really seen as to how the petitioner’s benefit could be denied and how he could not be said to be in Government service to deny to him the right of pension. I have examined the fact that the earlier writ petition filed by the petitioner and others in C.W.P. No.1838 of 1987 has been dismissed for default. I do not think that there could be any bar for claiming the petitioner’s right, for the cause of action itself is also set out which is made through the latter dated 17.12.1990 (Annexure P-2). If the petitioner had been contributing to the CPF and if any amount has been received by him at the time of his retirement, the same may be directed to be refunded with interest at 12% and the same be adjusted against the arrears of pension payable to the petitioner. The petitioner shall also be entitled to calculation of gratuity in the manner provided under the relevant Rules. The entire arrears of pension and gratuity shall be calculated and released to the petitioner within a period of 8 weeks with interest @12% from the date of his retirement till the date of payment. 7. The writ petition is allowed in the above terms. The petitioner has expired subsequent to the filing of the writ petition. The legal representatives of the petitioner have been impleaded. 7. The writ petition is allowed in the above terms. The petitioner has expired subsequent to the filing of the writ petition. The legal representatives of the petitioner have been impleaded. The legal representatives shall be entitled to the arrears of pension of what have accrued to the estate. ---------0.B.S.0------------