JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of present appeal under Clause 15 of the Letters Patent, the appellant-State has challenged the legality and validity of the order dated 28.02.2006 passed by the learned Single Judge while dealing with Special Civil Application No. 2057 of 1993, whereby the learned Single Judge has while turning down the prayer of the original petitioner for regularization of suspension period, has accepted his prayer for pay fixation on the basis of 4th Pay Commission Recommendations w.e.f. 1/1/1986 is accepted. 2. The short facts leading to the present appeal are that the respondent employee joined appellant Nagarpanchayat as Octroi Clerk w.e.f. 5/5/1954. He was suspended w.e.f. 20/02/1981 and continued to remain under suspension in view of initiation and continuation of criminal cases and civil proceedings against him and also since he has misappropriated large amount of the Nagar Panchayat. On 30/6/1993, he retired on his having crossed the age of superannuation. He, therefore, filed aforesaid petition for revocation of suspension and consequential benefits with revision of pay etc. inspite of pendency of criminal cases. The petition was disposed of with the aforesaid directions. 3. Learned advocate Mr. Raval states that learned Single Judge has committed error in granting the benefit of pay fixation pursuant to the 4th Pay Commission Recommendations. 4. He states that learned Single Judge has failed to appreciate that respondent no. 1 is facing the decree of the amount of Rs. 3,11,933.65 ps. with interest at the rate of 6% p.a. from the date of suit till the date of decree and at the rate of 12% p.a. from the date of decree till the date of realization. Therefore, learned Single Judge ought to have refrained himself from granting relief of benefit of pay fixation because, whatever amount paid by present appellant to respondent no. 1 towards subsistence allowance is such which cannot be recovered and for securing the interest of the appellant. 5. He states that learned Single Judge ought to have appreciated that such relief of benefit of 4th Pay Commission Recommendations cannot be granted to the respondent since he is facing the criminal cases which are pending against him. 6. Learned advocate Mr. D.J.Bhatt appearing for the respondent supports the order passed by the learned Single Judge. 5. He states that learned Single Judge ought to have appreciated that such relief of benefit of 4th Pay Commission Recommendations cannot be granted to the respondent since he is facing the criminal cases which are pending against him. 6. Learned advocate Mr. D.J.Bhatt appearing for the respondent supports the order passed by the learned Single Judge. He states that the order passed by the learned Single Judge is just and adequate and no interference would require by this Court. 7. We have heard learned counsel for the respective parties at length and in great detail. We have also Perused the order passed by the learned Single Judge. 8. We are of the opinion that while considering the overall aspects, the learned Single Judge has partly allowed the petition but has not accepted the regularization but has granted benefit of the 4th Pay Commission and correspondingly he will be entitled 50% suspension allowance. However, the same is objected on ground that the large amount is misappropriated by the appellant. 9. Considering the facts of the present case, it appears that the suspension is of the year 1981 and on 30/6/1993, he retired on his having crossed the age of superannuation and the petition was filed in the year 1993. In our view, there is a gross delay of twelve years. Therefore, learned Single Judge has rightly not granted benefit of higher pay scale. The argument regarding the regularization of the suspension period in view of the death of the original employee was turned down. The original petitioner seems to be an employee of the municipality and therefore, he is entitled for the 4th pay commission. Nonetheless, we cannot ignore the fact that the original employee has misappropriated huge amount and that Competent Civil Court has passed decree in favour of the appellant in respect of misappropriated amount. Having heard learned advocates on either side and with a view to protect interest of both the parties, we are of the opinion that the ends of justice would be subserved if we direct the appellant to pay the amount as per the impugned judgment to the legal heirs of the deceased employee on their filing the undertaking to the effect that they shall deposit the decretal amount in the Competent Court within a period of six weeks. In the alternative, the respondents can request the Municipality to invest the amount in FDR from dues payable to the respondents. The FDR shall be in the joint name of both the parties subject to out come of the appeal. The respondents will be entitled to the periodical interest that would accrue on the FDR. The FDR will be encashed by the parties who succeeds in the appeal. 10. With the above observations, the appeal is partly allowed to the aforesaid extent with no order as to costs.