JUDGMENT : 1. Heard learned advocate Ms. Mamata R. Vyas for the petitioner and learned advocate Mr. H. S. Munshaw for respondents. Perused the record. 2. Petitioner has sought indulgence of this Court under its jurisdiction under Article 14, 16 and 226 of the Constitution of India in the matter of non payment of pension and gratuity, so also wrong fixation of his salary only at the time of awarding pension and retirement benefits. For the purpose, petitioner has prayed to quash and set aside the orders dated 14.02.2008 at Annexure B and order dated 10.06.2009 which is at Annexure F, whereby respondents have revised the pay-scale of the petitioner by reducing it while awarding retirement benefits. Therefore, petitioner has prayed for direction to the respondents to pay all the retirement benefits including final pension, gratuity, commuted pension on the basis of last drawn salary on the post of Class III employee and to pay arrears with 12% interest from 01.12.2003 till its payment. 3. Petitioner has also prayed for direction to respondent No.1 to pay pension and gratuity to him on the basis of last actually drawn pay without making any recovery pending final disposal of this petition or in alternative, to pay an amount of Rs.5,00,000/- to the petitioner on ad-hoc basis. 4. It is obvious that such prayer is with a view to facilitate the petitioner after his retirement when his regular salary will stop and when he was not awarded legible pension even after a long services without any complaint etc. 5. It is undisputed fact that petitioner was appointed as Pump Attendant with the respondent No.2 on 01.03.1968 and that he retired on superannuation on 01.12.2003. It is also undisputed fact that on 27.12.2004 i.e. almost after a year of his retirement a no due and no event certificate was issued. But unfortunately till the date of the petition i.e. upto November 2009 he was not paid any amount towards pension and gratuity. The respondents have not paid the retirement benefits to the petitioner on assumption that though petitioner was appointed as Class IV employee, he drew the salary of Class III employee and, therefore, respondents have refixed the salary of the petitioner and recovery was ordered, but at least till date of filing of the petition recovery was not affected. The respondents have not paid the retirement benefits to the petitioner on assumption that though petitioner was appointed as Class IV employee, he drew the salary of Class III employee and, therefore, respondents have refixed the salary of the petitioner and recovery was ordered, but at least till date of filing of the petition recovery was not affected. Therefore, petitioner has contended in the petition that in fact he was rightly treated as Class III employee whereas if at all it is in existence, then it is never served upon him. Therefore petitioner is also challenging re-fixation of his pay so also order of recovery. 6. Letter dated 29.11.2003 at Annexure A conveying the petitioner does not confirm anything regarding anomaly which is created by the respondent while calculating and awarding retirement benefit to him. 7. Whereas, one of the impugned order dated 14.02.2008 at annexure B is so belated i.e. almost after 5 years of the retirement of the petitioner wherein now probably first time, respondents have came forward with the story that petitioner was paid salary as Class III employee but he was appointed in Class IV cadre and, therefore, his salary was revised right from the date of joining i.e. 01.03.1968 till his date of retirement. Therefore, in any case, there is inordinate delay in such revision of pay and irrespective of other factual evidence in favour of the petitioner, such delay itself would be sufficient cause to quash and set aside such an order which is as aforesaid issued after 5 years from the date of retirement. 8. At Annexure ‘C’ petitioner has produced no objection and no due certificate, which is also with calculation of pension as if he has served as Class III employee. Such order by the respondents themselves and, therefore, now it is for the respondents to plead and prove by proper and sufficient evidence that how they have revised the salary of the petitioner as per impugned order dated 14.02.2008. Though respondents have filed an affidavit in reply it would be discussed herein after, one thing is quite clear and certain that practically, there is no justification whatsoever for such rectification/revision of salary after 40 years. Though respondents have filed an affidavit in reply it would be discussed herein after, one thing is quite clear and certain that practically, there is no justification whatsoever for such rectification/revision of salary after 40 years. 8.1 Surprisingly, after impugned order dated 14.02.2008, again after more than a year now respondent has issued letter dated 10.11.2009 whereby now they have came forward with a direction that since petitioner has been paid a salary as Class III employee instead of Class IV employee an amount of Rs.3,32,710/- is required to be recovered from him. Such order also discloses that for such an additional payment there should be departmental inquiry against responsible officer who has paid salary of Class III to the petitioner. The order also confirms that petitioner should be paid provisional pension as if he has served as Class IV employee. On receipt of such order petitioner has served a legal notice to the respondent and most probably such notice was neither complied with nor ever responded too, which makes it clear that respondents do not have any reasonable for their misdeed as discussed herein above, i.e. revision of pay scale after 40 years. 8.2 Fortunately, act of the respondents as disclosed in their own correspondence in the Form of Annexure H, a letter dated 22.01.2004 addressed to the Superintending Engineer of the Board by the Executive Engineer that it is improper, irregular and thereby illegal. In such letter, there is categorical disclosure that petitioner was appointed as work charge attendant on the basis of his qualification of clearing wireman’s examination grade II and, therefore, he was appointed in the scale of 110 – 3 - 140 which is equivalent to Jr. Clerk/Record Keeper/Junior Clerk (typist) as per Recruitment Rules of the board. It is also disclosed that pursuant to such rules, his salary was revised, both by giving increment and revision of pay scale and, therefore, accordingly last salary of the petitioner was in the scale of 3050-70-4590, which is of the cadre of Junior Clerk, since petitioner was appointed as Class III employee on work charge at the relevant time and, therefore, gratuity needs to be paid as per relevant rules which are in force at that time. It seems that such letter was issued pursuant to some consideration by the department to consider the services of the petitioner in Class IV only and to that effect this communication has specifically disclosed that since petitioner has been retired on attaining the age of superannuation at 58 years as per conditions applicable to Class III employees. If petitioner is to be considered as employee of Class IV then the age of superannuation applicable would be 60 years and in that case petitioner may be required to be taken on duty again and, therefore, it was requested to reconsider the issue. The letter dated 09.06.1998 and 10.06.1998 were referred and annexed with such communication. 8.3 While seeking an interim relief against abrupt recovery by the petitioner, petitioner had relied upon an unreported decision in the case of Kanjibhai Alabhai Solanki vs. State of Gujarat in Special Civil Application No. 9537 of 2001. Now such issue has been confirmed by the Honourable Supreme Court in case of State of Punjab vs. Rafiq Masi reported in 2015 (4) SCC 334 . But, at the relevant time by an order dated 28.04.2010, this Court has directed the respondents to clear the payment of undisputed amount within 4 weeks with further direction that no recovery will be made at that stage. Thereafter matter was admitted by an order dated 07.07.2010. 9. Whereas respondent has came forward with pleadings in their affidavit in reply that petitioner was appointed only in Class IV work charge pump attendant in the year 1968 but pay scale fixed in his case is 110-3-140 was actual amount for Class III employee though he was entitled to pay scale 90 – 2 – 110 only because petitioner was holding a certificate of SSC and Second Class Workman Examination. But such mistake was came to the notice of the respondents only at the time of preparing pension papers after petitioner was retired on 30.05.2003. Therefore, there is categorical admission by the respondent that there was no role of the petitioner in fixing his salary or getting the salary as received by him, it was mistake on the part of the respondent which was noticed by them only after 40 years. Therefore, there is categorical admission by the respondent that there was no role of the petitioner in fixing his salary or getting the salary as received by him, it was mistake on the part of the respondent which was noticed by them only after 40 years. It is also contended in such reply that petitioner has already been paid the amount of Provident Fund as well as gratuity after his retirement and also benefit of leave encashment on the basis of his last pay, considering that he has served as employee of Class III cadre only i.e. 4590/- in the pay scale of 3050 – 90 – 4590. It is also disclosed that such pay has been fixed as per impugned order dated 14.12.2008 and that all the benefits of pay commission, are already extended and, therefore, now there is no reason to pay any additional amount or interest to the petitioner. It is also admitted in such reply that hey have corrected the error and informed the petitioner by letter dated 31.12.2016 which is Six years after the date of retirement of the petitioner. Respondents have therefore annexed relevant communication on the subject which are not in dispute at present. 9.1 However, considering the admission by the respondent about their mistake which was noticed only after almost 40 years and more particularly considering the averments of letter dated 22.01.2004 wherein there is disclosure and admission in communication between two officers of respondents themselves, that petitioner was appointed as class III employee, because of his clarification and, therefore, now there is no reason to revive this salary after the lapse of 40 years, which would other wise create some other issue i.e. allowing the petitioner to serve upto age of 60 years. 9.2 Therefore, petitioner is right when he has averted in his affidavit in rejoinder that for the first time by an order dated 14.02.2008, (Annexure B), he has been treated as Class IV employee and his pay has been fixed right from the appointment i.e. 01.03.1968 and such revision of pay was decided without affording an opportunity of hearing to the petitioner and to allow him to clarify that whether at the time of appointment he was employed in Class III or Class IV post and that he was selected as per his qualification or not. Petitioner has also contended that he has been deprived of even provisional pension though there is specific provision in Gujarat Civil Serves (Pension) Rules for the purpose. More particularly when there is no disciplinary or criminal proceedings are pending against him and there is clear no due certificate since 27.12.2008 and, therefore, petitioner has contended that he is entitled to even interest also. 10. Since respondents have failed to comply with the Court’s order and the applicable Rules in such cases they have no option but to seek unconditional apology again by filing an affidavit of 27.04.2010 wherein they have no option but to averted on oath as under:- “The respondent No.2 first of all most respectfully craves leave to tender unconditional apology for stating on oath that the petitioner herein is paid gratuity after his retirement. It is submitted that as such on verification of record it is found that the petitioner is paid the benefit of Provident Fund as well as leave encashment. The respondent No.2 submits that through inadvertence it was stated on oath that the petitioner is paid the benefit of gratuity. The respondent No.2 tenders his unconditional apology fro the said error and humbly prayed to pardon him. The respondent No.2 submits that the petitioner herein is paid an amount of Rs.1,88,567/- towards provident fund on 06.04.2004 and an amount of Rs.75,090/- towards leave encashment on 01.12.2003. It is submitted that the petitioner is yet not released the benefit of pension as his salary is required to be re-fixed on the basis of his employment as Class-IV employee in the cadre of Work Charge Pump Attendant. It is submitted that the petitioner was through out treated as Class-III employee and paid the salary meant for Class-III employee. The respondent No.2 further submits that this error is noticed only after retirement of the petitioner as certain papers were to be prepared for release of various benefits and, therefore, a lengthy correspondence was entered into with the office of Superintending Engineer as well as Head Office at Ahmedabad. The respondent No.2 submits that in view of this, the petitioner cannot be released the pension as well as gratuity on the basis of his last drawn salary of Rs.4,590/- meant for Class-III cadre in the pay scale of Rs.3050-90-4050/-. The respondent No.2 submits that in view of this, the petitioner cannot be released the pension as well as gratuity on the basis of his last drawn salary of Rs.4,590/- meant for Class-III cadre in the pay scale of Rs.3050-90-4050/-. It is submitted that in view of the pay scale of the petitioner is to be revised, the petitioner is called upon to submit pension papers on that basis to enable the respondent No.2 to propose and submit the pension papers to the higher authority for necessary action. The respondent No.2 submits that the petitioner herein has yet not completed the necessary formalities in this regard and hence no further actions are taken. It is submitted that as soon as the petitioner submits the necessary forms and papers agreeing to accept the retiral benefits on the basis of salary meant for Class-IV cadre, the needful will be done immediately and the pensionary benefit including gratuity will be released without any delay.” 10.1 Whereas by another affidavit dated 01.07.2010 for the first time respondents have came forward disclosing that though an amount of Rs.3,57,802/- is payable to the petitioner, they have released the payment of Rs.9582 because of revision in pay scale of the petitioner as disclosed herein above. With such affidavit calculation is also annexed. Whereas by an affidavit dated 03.07.2010 respondent has agreed to state on oath averting as under:- “The respondent No.2 most respectfully states that he is a senior officer of Gujarat Housing Board and holding the post of Supdt. Engineer, Ahmedabad and has the highest regard for the orders of this Hon’ble Court as well as the orders of the say of the Courts of the land and has neither intenionally nor wilfully disobeyed the orders of this Hon’ble Court passed on 28.04.2010. The respondent No.2 humbly submits that this Hon’ble Court be pleased to accept the unconditional apology for non compliance of the order dated 28.04.2010 and issuance of a cheque toward retiral benefits in favour of the widow of late Mr. Bharat D. Desai after making a recovery. The respondent No.2 submits that subsequent to the death of Mr. Bharat D. Desai necessary paper work was completed in hot hurry and the recovery is made and a cheque of Rs.9582/- dated 30.06.2010 was issued. Bharat D. Desai after making a recovery. The respondent No.2 submits that subsequent to the death of Mr. Bharat D. Desai necessary paper work was completed in hot hurry and the recovery is made and a cheque of Rs.9582/- dated 30.06.2010 was issued. The respondent No.2 submits that this error was committed through inadvertence and as soon as it was brought to the notice of the Housing Commissioner and the deponent by advocate Mr. H. S. Munshaw appearing on behalf of Gujarat Housing Board on 02.07.2010 necessary actions were promptly taken to rectify the error and cheque of Rs.2,61,970/- dated 02.07.2010 towards pension and 40% commutation of pension is prepared. The respondent No.2 submits that another cheque dated 02.07.2010 amounting to Rs.95832 towards gratutity is also prepared and copies of letters dated 02.07.2010 along with cheques are annexed herewith and marked as Annexure A collectively. The respondent No.2 submits that the cheques are issued in the name of late Mr. Bharat D. Desai without making any recovery and are based on the pay scale available to a Class IV employee.” 11. Above disclosed factual details and circumstances categorically confirms that there is not only inordinate delay in taking decision but there is selectiveness and arbitrariness on the part of the respondent in considering the appointment of the petitioner in class IV cadre though he was paid salary as if he was appointed in class III right from the date of appointment i.e. 19.03.1968. 12. It is also surprising to note that even on the date of retirement and his documentary evidence though calculated after issuance of no due certificate, after the passage of 5 years from the date of retirement his salary were revised from the date of his appointment only for the purpose of calculating pension and retirement benefits. 13. Therefore, there is no option for this Court, but to allow this petition by holding that the impugned order dated 14.2.2008 at Annexure-B and dated 10.6.2009 at Annexure-F are result of arbitrariness and irregularity on the part of the respondents and therefore, they are required to be quashed and set-aside. 13. Therefore, there is no option for this Court, but to allow this petition by holding that the impugned order dated 14.2.2008 at Annexure-B and dated 10.6.2009 at Annexure-F are result of arbitrariness and irregularity on the part of the respondents and therefore, they are required to be quashed and set-aside. Hence, they are hereby quashed and set-aside, which would result into confirmation that the petitioner has served with the respondents as Class-III employee from the date of his appointment i.e. 1.3.1968, more particularly when such fact is admitted by the officers of the respondents in their internal correspondence being letter dated 22.1.2004, which is produced at Annexure-H. 14. In view of such declaration, now, the respondents are required to recalculate the pensionary and all other retirement benefits as if impugned orders dated 14.2.2008 and 10.6.2009 are not in existence and thereby, to calculate all benefits, as if the petitioner has served the department as Class-III employee. Therefore, now, respondents are directed to pay all the retirement benefits including final pension, gratuity, commuted pension to the petitioner on the basis of his last drawn on Class-III post and to pay arrears of all the amount with 6% interest from the date of his retirement i.e. 1.12.2003 till the actual payment within four months from the date of receipt of writ of this judgment. If the said amount is not paid within four months, then the interest is to be paid @ 9%. When certain amount is paid pending this petition, the interest on such amount has to be calculated from 1.12.2003 till the actual payment of such amount, which is disclosed on record and referred herein above. Thereby, the petition is allowed to the above extent. 15. The petitioner is relying upon the decision in the case of Vijay L. Mehrotra Vs. State of U.P. reported in AIR 2000 SC 3513 , wherein, Hon’ble Supreme Court has awarded 18% interest. The petitioner is also relying upon S.K. Dua v. State of Haryana reported in AIR 2008 SC 1077 , wherein, Hon’ble Supreme Court has remanded the matter back to the High Court for considering issue of interest to be paid for such delayed payment because the High Court has dismissed such petition even without issuing notice to the respondent authorities. 16. 16. It would be appropriate to recollect the decision in the following cases:- (1) 2003 AIR SC 3966 between KSRTC v. K.O. Varghese (2) AIR 2001 SC 2433 between Gorakhpur University v. Shitla Prasad Nagendra (3) AIR 2000 SC 1918 between R. Veerabhadram v. Government of AP (4) State of Kerala v. M. Padmanabhan Nair between 1985 (1) SCC 429 16.1 Wherein Hon’ble Supreme Court of India has reiterated its earlier view holding that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but, have become, under the decisions of the Hon’ble the Supreme Court of India, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be dealt with the penalty of payment of interest at the current market rate till actual payment to the employees. The said legal principle laid down by Hon’ble Supreme Court of India still holds good in so far as awarding the interest on the delayed payments to the appellant is concerned. 17. Reference to the decision in Letters Patent Appeal No.1429 of 2015 between State of Gujarat v. Gujarat State Pensioners Federation dated 4.1.2016 is also relevant wherein the Division Bench of this High Court has confirmed the reasoned judgment dated 16.6.2015 of learned Single Judge in Special Civil Application no.8251 of 2015. Since the Division Bench has endorsed the reasoning of the learned Single Judge, I am not reproducing all those reasoning because they are available in public domain but pursuant to such reasoning, now, it is clear that in case of delayed payment of retired benefit, employees are certainly entitled to interest thereon. It cannot be ignored that there is reference of Government Resolution dated 8.10.2014 in such unreported cases but unfortunately government does not come forward to disclose their own circulars on the subject. 18. It is needless to mention that if the respondents have erroneously withheld payment for which the petitioner herein is entitled in law for payment of penal amount on the delayed payment. 19. For the reasons stated above, I award interest at the rate of 6% interest on the delayed payment from the date of entitlement till the date of the actual payment. 19. For the reasons stated above, I award interest at the rate of 6% interest on the delayed payment from the date of entitlement till the date of the actual payment. If this amount is not paid within four months from the date of receipt of a copy of this order, the same shall carry interest at the rate of interest 9% per annum from the date of amount falls due to the deceased employee. 20. Respondents have to disclose the calculation sheet to the petitioner and if there is any ambiguity, petitioner would be free to agitate it in accordance with law. Petition is allowed and disposed of accordingly. Rule is made absolute to that extent. Petition allowed.