JUDGMENT : 1. The petitioner who retired as Chief Officer from Bagasara Municipality on 30.6.1993 on completion of 58 years of age, has filed this petition under Article 226 of the Constitution of India for the following prayers in para 14 as under:- “a) Your Lordships may be pleased to issue a writ of mandamus, or any other writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned decision of the Respondents not to pay the legitimate retiral dues to the petitioner on his super annuation declaring the said impugned action as Violative of Articles 14 and 16 of the constitution of India and further be pleased to direct the Respondent No.1 to make the payment of all the retiral dues to the petitioner with 12% interest with effect from 1.7.1993 forthwith strictly in accordance with the rules framed by the Respondent No.3 in his order dated 25.4.1988, (aa) Your Lordships be pleased to issue writ of mandamus and/or any other appropriate order or direction in the like nature to direct the respondents to fix pension at Rs.2,025/-per month w.e.f. 1.7.1993 with consequential increase/ benefits and/or as per pension Rules and pay the arrears from 1.7.1993 with 12% interest. (aaa) Your Lordships be pleased to issue a writ of mandamus and/or any other appropriate order or direction in the like nature to quash and set aside the action of the respondent and direct the respondent to refund Rs.80,818.78 ps illegally recovered from the pension of the petitioner with 12% interest. (b) Pending hearing, admission and final disposal of this writ petition, Your Lordships may be pleased to direct the Respondent No.1 to make the payment of all the retiral dues with 12% interest from 1.7.1993 to the petitioner strictly in accordance with the rules framed by the respondent No.3 as per his order dated 25.4.1988 forthwith. (c) …. (d) …. 2. The case of the petitioner is that he joined the service of Bagasara Municipality on 18.2.1978 as Administrative Officer cum Secretary. He was then appointed as Chief Officer on 14.6.1990. He was appointed in the grade of Rs.2000-35000. On reaching the superannuation age of 58 years, the petitioner was retired from service by order dated 30.3.1993 with effect from 30.6.1993. The case of the petitioner is that he joined the service of Bagasara Municipality on 18.2.1978 as Administrative Officer cum Secretary. He was then appointed as Chief Officer on 14.6.1990. He was appointed in the grade of Rs.2000-35000. On reaching the superannuation age of 58 years, the petitioner was retired from service by order dated 30.3.1993 with effect from 30.6.1993. It is the case of the petitioner that respondent No.1 passed Resolution No.45 on 1.7.1993 for giving pension, gratuity etc. to the petitioner and then passed order dated 13.10.1993 sanctioning the pension to the petitioner at Rs.505/-per month with gratuity and commuted pension of Rs.16,800/-and Rs.21,732/-respectively as per the Pension and Gratuity Rules framed by the respondent No.3-Director of Municipalities. However, by order dated 31.12.1993, the respondent No.1 decided not to release pension benefits till final order in Criminal Case No.278 of 1992 against the petitioner was passed. The petitioner was then acquitted in the said criminal case by order dated 22.3.1994. However, the petitioner was still not released benefit of pension, gratuity etc. in spite of the representations made by the petitioner. The petitioner thus filed the petition initially for seeking direction for release of the retiral dues of the petitioner with interest at the rate of 12% per annum from 1.7.1993. 3. It appears that since the petitioner died, pending the petition, his heirs have been brought on record. The petition was then amended, whereby the petitioners prayed to fix pension at the rate of Rs.2025/-per month with effect from 1.7.1993 with consequential increase/ benefits as per the Pension Rules with interest at the rate of 12% per annum. The petitioner also prayed to quash and set aside the action of the respondents in recovering Rs.80,818.78 ps. from the pension of the petitioner. 4. It appears that pending the petition, by interim order dated 24.11.1994, the Court directed the respondents to pay 90% of the retiral dues and also directed the respondents to consider the representation of the petitioner. Pursuant to the said direction, provisional pension of the petitioner was fixed at Rs.337/-per month. The main grievance of the petitioner in this petition is that instead of Rs.505/-per months fixed as pension of the petitioner, the petitioner was entitled to pension at the rate of Rs.2025/-per month and it was not open to the respondents to deduct any amount from the pension benefit of the petitioner. 5. The main grievance of the petitioner in this petition is that instead of Rs.505/-per months fixed as pension of the petitioner, the petitioner was entitled to pension at the rate of Rs.2025/-per month and it was not open to the respondents to deduct any amount from the pension benefit of the petitioner. 5. The petition is opposed by affidavit-in-reply dated 2.9.1994 filed on behalf of respondent No.1, further affidavit dated 19.1.2010 and also further affidavit-in-reply dated 13.2.2010. The petitioner has also filed rejoinder. Thereafter, one more affidavit-in-reply dated 25.2.2010 came to be filed. Thereafter additional affidavits on behalf of the petitioner as also on behalf of respondent No.1 placing on record the Rules for Pension, Gratuity etc. and copies of the pension papers of the petitioner containing calculation made by the Municipality came to be filed. Heirs of the original petitioner filed additional affidavit dated 2.3.2012. Respondent No.1 then filed further affidavits dated 23.4.2012, 19.6.2013 and 6.8.2013. 6. All the above pleadings between the parties are to point out the rival formulas and calculations on question of correct fixation of pension of the petitioner. 7. I have heard learned advocates for the parties. 8. Learned advocate Mr. D.G. Chauhan appearing for the petitioner submitted that the petitioner since retired as Chief Officer could not be given meagre amount of pension of Rs.505/-per month. Mr. Chauhan submitted that there is total misconception in the mind of the concerned authority of the Municipality in fixing the pension of the petitioner. Mr. Chauhan submitted that the Rules of the Municipality for the purpose of fixing the pension of its employees clearly provide for fixation of pension at 50% of the pensionable pay of an employee when he retires. However, the Municipality after arriving at pensionable pay, considered the length of the service of the petitioner and divided by 33 and then arrived at a figure of pension payable to the petitioner, which is in clear contravention of the Rules for pension. Mr. Chauhan submitted that when the Municipality has framed its Rules of pension and when such Rules provide for one half of average pay arrived at on considering the length of service put in by an employee, no further division of such amount arrived at is permissible under the Rules. Mr. Mr. Chauhan submitted that when the Municipality has framed its Rules of pension and when such Rules provide for one half of average pay arrived at on considering the length of service put in by an employee, no further division of such amount arrived at is permissible under the Rules. Mr. Chauhan submitted that the Resolution dated 31.7.1987 of the Finance Department of the State Government, alleged to have been adopted by the Municipality, has done away with the formula for fixing the pension under the earlier resolution dated 12.7.1979 and provides for calculation of pension by taking 50% of the average pay and therefore, whatever average pay available to the petitioner as per the Rules for calculation of pension, pension was required to be calculated at the rate of 50% of the said average pay. Mr. Chauhan submitted that the calculation made by the Municipality adopting the principle of proportionality of service, i.e. dividing the pensionable pay in proportionality of service is not supported by the Rules of the Municipality or the resolution of the Government alleged to have been adopted by the Municipality. Mr. Chauhan submitted that the calculation in the pension papers placed on record by the Municipality clearly goes to show that the Municipality has exceeded in its power by adopting the formula, which is strange to the Rules made by the Municipality for fixing pension of its employees. Mr. Chauhan submitted that as per the Rules of the Municipality, the petitioner will be straightway entitled to 50% of the average pay arrived at on the basis of the Rules of the Municipality and therefore, fixation of pension of the petitioner at meagre amount of Rs.505/-per month is contrary to the Rules for Pension and therefore, such fixation of pension at Rs.505/- per month is to be quashed and set aside and the respondents are required to be directed to fix pension at Rs.2025/-per month with effect from 1.7.1993 with all other consequential increments/ benefits with interest at the rate of 12% per annum. 9. As against the above arguments, learned advocate Mr. M.B. Parikh appearing for the Municipality submitted that pension of the petitioner was calculated as per the Rules of the Municipality, which provided for grant of pension to an employee in proportion to the length of service put in by such employee. Mr. 9. As against the above arguments, learned advocate Mr. M.B. Parikh appearing for the Municipality submitted that pension of the petitioner was calculated as per the Rules of the Municipality, which provided for grant of pension to an employee in proportion to the length of service put in by such employee. Mr. Parikh submitted that the Rules of the Municipality for fixing the pension of its employees provide for calculation of pension as per the provisions of the Bombay Civil Services Rules ('BCSR' for short) and as per the provisions of the BCSR with the resolution of the Government dated 31.7.1987, pensionable pay of the petitioner was determined and considering number of years of service of the petitioner, pension of the petitioner was fixed. Mr. Parikh submitted that the average pay calculated by the Municipality was in fact on higher side than the average pay calculated by the petitioner. Mr. Parikh submitted that as per the formula for fixing the pension of an employee, pensionable pay is required to be fixed at 50% of the average pay and then the pension is fixed in proportion to the length of service of the employee by adopting maximum of 33 years of service. Mr. Parikh submitted that in the case of the petitioner, pensionable pay arrived at was Rs.1109/-and since the petitioner had put in 15 years of service, the pension of the petitioner was fixed by applying multiplication of 15/33 to the pensionable pay and the same was since in consonance with Government Resolution dated 31.7.1987, there is no justification in the grievance raised by the petitioner. Mr. Parikh submitted that the Municipality had in fact got confirmed the calculation of the pension made by it from the office of the Director of Pension and Provident Fund and even the Deputy Director of Pension and Provident Fund has filed affidavit placing on record the calculation of average pay as also pensionable pay of the petitioner and final figure of pension of the petitioner. Mr. Parikh submitted that there is no difference in the calculation from the office of the Director of Pension and Provident Fund and the calculation of pension made by the Municipality. Mr. Mr. Parikh submitted that there is no difference in the calculation from the office of the Director of Pension and Provident Fund and the calculation of pension made by the Municipality. Mr. Parikh submitted that the formula for calculation of pension adopted by the Municipality in the case of the petitioner has been applied in the case of all employees of the Municipality and there is no illegality in calculating the pension of the petitioner and the petitioner is, therefore, not entitled to any relief as regards re-fixation of pension of the petitioner. Mr. Parikh submitted that when the petitioner was working as Chief Officer, he himself had adopted the above formula in case of other employees of the Municipality. 10. Learned advocate Mr. Parikh submitted that the petitioner is not entitled to make any grievance at this stage as regards deduction/ recovery of Rs.80,890/-made by the Municipality from the pension of the petitioner. Mr. Parikh submitted that the petitioner had not made any grievance in his lifetime and the grievance as regards such deduction is made for the first time in the year 2009 by making the amendment in the petition, which was filed in the year 1994. He submitted that the prayer made against the action of the Municipality in deducting such amount from pension and for refund of the said amount may not be entertained at this belated stage. Mr. Parikh thus urged to dismiss the petition. 11. Learned Assistant Government Pleader Mr. Ronak Raval appearing for respondent Nos.2,3 and 4-State authorities while adopting the arguments of learned advocate Mr. Parikh of the Municipality submitted that the Rules of the Municipality for pension to its employees since providing for calculation of pension as per the provisions of the BCSR and on the basis of the resolutions of the State Government, the petitioner is not entitled to put forth his own calculation of pension. Mr. Raval submitted that an employee of other Municipality or of the State Government is entitled to pension in proportion to the length of service put in by such employee. Mr. Raval submitted that in the case of the petitioner, the Municipality has rightly fixed the pension of the petitioner by adopting the formula of 15 x 33 years as maximum 33 years of service is required to be taken into consideration. Mr. Mr. Raval submitted that in the case of the petitioner, the Municipality has rightly fixed the pension of the petitioner by adopting the formula of 15 x 33 years as maximum 33 years of service is required to be taken into consideration. Mr. Raval submitted that no illegality in fixing the pension of the petitioner is committed by the Municipality. Mr. Raval submitted that so far as recovery of Rs.80,890/-is concerned, the Municipality had since taken decision for such deduction from the pension of the petitioner in the lifetime of the petitioner, the petitioners are not entitled to ask for any relief by way of amendment in the year 2009 in the petition at the very belated stage. Mr. Raval thus urged to dismiss the petition. 12. Having heard learned advocates for the parties and having perused the record of the case, it appears that the petitioner-deceased Lalsinh Chauhan had retired from service as Chief Officer of Bagasara Nagar Palika-respondent No.1 on 1.7.1993 after putting 15 years, 4 months and 12 days of pensionable service. It is the case of the petitioner that the Director of Municipality has approved the Rules for pension and gratuity under Section 271 of the Municipalities Act and as per the said Rules, he would be entitled to pension of Rs.2025/-per month but on wrong calculation, his pension was fixed at Rs.505/-per month. The Rules for pension, gratuity etc. are placed at page No.119 with affidavit-in-reply filed on behalf of the respondent No.1. 13. Annexure-H is a copy of communication/ representation dated 17.2.1994 addressed by the petitioner to the Administrator of the Nagar Palika requesting for payment of pension and other retirement dues to him. In the said representation, he has given his own calculation of pension. He has arrived at average pay of Rs.2170/-by taking 36 months' pay. He has taken 1/16 of the average pay, which came to Rs.135/-. He multiplied the said figure of Rs.135/-by 15, i.e. the length of service put in by him, and thus arrived at Rs.2025/-as pension per month. 14. It appears that the above formula was applied by the petitioner on the basis of the scale of pension at 1/16th of average pay, found mentioned below sub-clause (b) of the said Rules. He multiplied the said figure of Rs.135/-by 15, i.e. the length of service put in by him, and thus arrived at Rs.2025/-as pension per month. 14. It appears that the above formula was applied by the petitioner on the basis of the scale of pension at 1/16th of average pay, found mentioned below sub-clause (b) of the said Rules. Sub-clause (b) reads as under:- “(b) After a service of not less than 10 years a pension not exceeding the following amounts.” Therefore, what clause (b) provides is that pension shall not go or fixed beyond 1/16th of the average pay. However, the same would not mean that an employee shall be entitled to pension in multiplier of length of service of an employee to 1/16th of the average pay (pensionable pay) because these very Rules provide that pension and gratuity to all municipal employees shall be in accordance with the provisions of the BCSR as amended from time to time. 15. The BCSR was applicable before the Gujarat Civil Service (Pension) Rules 2002 came into force for pension. The Government had earlier issued resolution dated 12.7.1979 and thereafter, resolution dated 31.7.1987 for the Government employees for fixation of the pension as per the said Rules. 16. The pension payable under BCSR with resolution was to be calculated at 50% of pensionable pay and in proportion to the length of qualifying service, maximum of which was 33 years. Therefore, after calculating 50% of the pensionable pay, whatever figure came was required to be proportionately divided by taking maximum length of 33 years of qualifying service. On such basis, pension of an employee was to be calculated. By resolution dated 31.7.1987, slab formula which was earlier adopted in the resolution of 1979, has been given go-bye, meaning thereby, as per the resolution dated 31.7.1987, straight 50% of the pensionable pay was to be taken for the purpose of calculation of pension instead of in the slab of 50% of first Rs.1000/-, then 45% of next Rs.500/-and then at the reduced percentage for rest part of the salary. However, the method of proportionality in the context of length of service has not been given go-bye. However, the method of proportionality in the context of length of service has not been given go-bye. Thus, what was being followed for the Government employees under the BCSR was required to be followed as provided in the Rules for pension framed by Bagasara Nagar Palika and approved by the Director of Municipality under Section 271 of the Municipalities Act. It is required to be noted that under these Rules, method of calculation of pension is not provided. What is provided is method of fixing the average pay for the purpose of pension. There is no dispute about the fact that average pay arrived at by the Municipality at Rs.2218/- is higher than the average pay calculated by the petitioner himself at Rs.2170/-as stated above. However, difference between two calculations for the purpose of pension is that the petitioner has arrived at pension of Rs.2025/- per month by taking 1/16th of the average pay and applying multiplier of 15, being the length of service put in by him, whereas the Municipality after arriving at 50% of the pensionable pay (average pay) calculated the pension by taking total length of service of the petitioner and dividing the same by maximum qualifying service of 33 years fixed for the purpose of pension. 17. In my view, the calculation made by the Municipality could be said to be in accordance with the Rules of the Municipality. As per the Rules of the Municipality, taking of 1/16th of the average pay is not for calculation of pension but is just for putting an outer limit beyond which the employee is not made entitled to pension benefits. When these very Rules provide for grant of pension in accordance with the provisions of the BCSR and when the pension of Government employees governed by the BCSR is fixed on the basis of the resolution of the Government dated 31.7.1987, the case of the petitioner could also be said to be governed by the method of calculation for pension provided in the resolution dated 31.7.1987. There is no dispute about the fact that the calculation is based on the said resolution. 18. There is no dispute about the fact that the calculation is based on the said resolution. 18. At this stage, it is required to be noted that the petitioner when was serving as Chief Officer had himself adopted the above such calculation in the case of one Shri Liladhar Devsibhai Gohil whose pension papers are placed with the additional affidavit filed by the present Chief Officer, wherefrom it is found that last 10 months' average is taken, which is divided by 50% to arrive at pensionable pay and pension is calculated in proportion to the length of service put in by the said employee by applying the formula adopted in the resolution dated 31.7.1987. Thus, the petitioner himself had adopted the above-said formula to fix the pension of the said employee when he retired. Though respondent No.1 has filed additional affidavit to point out that as per further resolution dated 3.3.2007, the formula of calculating at 50% of the pensionable pay with slight modification in the proportionality of the service is provided, however the same is not required to be considered as the case of the petitioner is governed by the Rules made by the Municipality and the resolution dated 31.7.1987. 19. It is required to be noted that the Gujarat Civil Service (Pension) Rules, 2002 also provide for calculation of pension in proportionality of the qualifying service put in by employee. Rule 4 of the said Rules for pension reads under:- “4. Pension: 4.1. The service gratuity for qualifying service of less than ten years shall be calculated at uniform rate of half month's pay for every contemplated six monthly period of service instead of at the rates provided under Rule-6 of the Revised Pension Rules, 1950, as amended from time to time. 4.2. Pension shall be calculated at 50% of pensionable pay in all cases instead of under the slab formula given in the GRFD No.NVN-1079-1598-P, Dt.12-7-79 and shall subject to minimum of Rs.375 p.m. and maximum of Rs.4000 p.m. 4.3. In the case of a Government employee retiring before completing qualifying service of 33 years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible as per calculation at 50% of pensionable pay, subject to minimum and maximum mentioned here before. 4.4. In the case of a Government employee retiring before completing qualifying service of 33 years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible as per calculation at 50% of pensionable pay, subject to minimum and maximum mentioned here before. 4.4. Notwithstanding anything contained herein above, the amount of invalid pension shall not be less than the amount of family pension admissible under the Family Pension Scheme, 1972, as amended from time to time.” In above view of the matter, it appears that the formula adopted by respondent No.1 Municipality for the calculation of pension of the petitioner was correct formula and on the basis of the same, pension of the petitioner fixed at Rs.505/- per month could not be said to be in any manner illegal or contrary to the Rules of the Municipality. Therefore, challenge of the petitioner against fixation of pension by the respondent Municipality cannot be accepted. 20. However, so far as deduction of Rs.80,818.78 ps. from the pension of the petitioner is concerned, there is no dispute that before deducting the aforesaid amount by installments from 1996 onwards at the rate of Rs.500/-per month, no notice was given to the petitioner nor even any procedure was followed for such deduction. Deduction of the said amount was stated to be on account of the petitioner making wrong payments to some employees of the Municipality while acting as Chief Officer of the Municipality. However, it is required to be noted that no inquiry was held against the petitioner for arriving at the conclusion that the petitioner had made wrong payments. In fact, after the petitioner retired from service, the Municipality just by resolution decided to recover the aforesaid amount. Therefore, the action of the Municipality of deciding to recover the aforesaid amount could be said to be nullity, void ab initio. Though learned advocate Mr. In fact, after the petitioner retired from service, the Municipality just by resolution decided to recover the aforesaid amount. Therefore, the action of the Municipality of deciding to recover the aforesaid amount could be said to be nullity, void ab initio. Though learned advocate Mr. Parikh for the Municipality submitted that during the lifetime of the petitioner, he did not challenge the action of starting to recover the aforesaid amount from his pension per month and it is only after he died pending the petition, heirs of the petitioner have brought in challenge the said action by amendment in the petition, in my view, when the action itself was void from inception, no limitation would come in the way of the petitioner in making challenge against the void and invalid action. Therefore, even if the petitioner has initially not challenged the action of recovery from pension, then also, the petitioners could not be estopped from challenging such action. Even otherwise, since the recovery of the amount at the rate of Rs.500/-per month from the pension of the petitioner could be said to be continuous wrong, such challenge could be entertained in the present petition. 21. In view of the above, recovery of Rs.80,818.78 ps. made by the Municipality cannot stand scrutiny of law. The said amount is required to be refunded to the petitioners. The petition is, therefore, required to be partly allowed so far as recovery of the aforesaid amount of Rs.80,818.78 ps. is concerned. 22. For the reasons stated above, the petition stands dismissed as regards challenge to fixation of pension at the rate of Rs.505/-per month of the petitioner. However, the petition is partly allowed as regards recovery of Rs.80,818.78 ps. The respondents are, therefore, directed to refund the aforesaid amount of Rs.80,818.78 ps. to the petitioners with interest at the rate of 9% per annum from the date of amendment of the petition, i.e. from 11.12.2009 till the actual payment of the said amount is made to the petitioners. The respondents shall refund the said amount with interest as stated above within ONE MONTH from the date of receipt of this order. Rule is made absolute to the extent stated above. Sd/- (C.L. SONI, J.) 1. After pronouncement of the judgment, learned advocate Mr. Parikh for the Municipality has requested to suspend the order whereby the Municipality is directed to refund amount of Rs.80,818.78 ps. Rule is made absolute to the extent stated above. Sd/- (C.L. SONI, J.) 1. After pronouncement of the judgment, learned advocate Mr. Parikh for the Municipality has requested to suspend the order whereby the Municipality is directed to refund amount of Rs.80,818.78 ps. Since the Court has granted one month’s time to refund the amount, the request is rejected. 2. Learned advocate Mr. Parikh has drawn the attention of the Court that pursuant to interim order passed by this Court, the Municipality has deposited Rs.5 Lac with the registry of this Court. He therefore, requests that since the petition is dismissed as regards fixation of pension, the above said amount be permitted to be withdrawn by the Municipality. Mr. Parikh is justified in making the above request. However, since the Court has directed the Municipality to refund the amount of Rs.80,818.78 ps. with interest at the rate of 9% from the date the petition was amended, i.e. on 11.12.2009, till the actual payment is made, the Municipality shall be entitled to withdraw the amount deposited by it minus the amount of Rs.80,818.78 ps. and the amount of interest at the rate of 9% per annum accrued till 31.08.2013. Such deducted amount shall be retained by the registry for a period of one month to enable the Municipality to approach the higher forum against the order directing the Municipality to refund the above said amount to the petitioners. However, if no order of stay against the above said direction issued by this Court is obtained within a period of one month, registry shall release the said deducted amount on expiry the period of one month from 31.08.2013.