JUDGMENT : 1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs :­ “12(A) directing the respondent no. 2 to pay the amount of pension and gratuity w.e.f. 1.9.1998 with 10% interest. (B) Directing the Respondent no. 2 to grant higher grade scale to the petitioner as per law and to pay the arrears with interest at 10% from the due date. (C) During the pendency and final disposal of this petition, the Respondent no.2 may be directed to pay the amount of gratuity immediately . (D) To pass such other and further orders as may be deemed fit.” 2. The case of the petitioner is that the she was appointed as Assistant Teacher by order dated 21.10.1976 passed by the President Nagar Panchayat, Gadhada. While appointing the petitioner, her name was called from the employment exchange and then interviewed by the competent selection committee by the Nagar Panchayat and her appointment was effected. Throughout the service, the petitioner has discharged her service with due diligence, but later on has sought voluntary retirement vide her letter dated 20. 05.1998 with effect from 01.09.1998. This request for voluntary retirement was accepted by respondent no.2, whereby, the petitioner was permitted to retire with effect from 01.09.1998. 2.1. It is the case of the petitioner that after the request is made to sanction her pension vide letter dated 06.08.2001, the said request was made to respondent no. 2 and in turn, the District Development Officer, Bhavnagar wrote a letter to respondent no. 2 on 15.04.2002, to do the needful since the said request was not adhere timely, and petitioner had not been paid any pension or even gratuity. As a result of this, upon advise, the petitioner approached the Alternative Disputes Resolution Mechanism at Ahmedabad, wherein, the authority has heard the matter on number of occasions, but ultimately vide order dated 21.11.2005, the same was disposed of. Despite that fact, gratuity amount was not released. Though respondent no. 2 has admitted entitlement of the petitioner for gratuity, but then, later on, having not paid any pension, the petitioner was constrained to approach this Court by way of the present petition. 3. Despite that fact, gratuity amount was not released. Though respondent no. 2 has admitted entitlement of the petitioner for gratuity, but then, later on, having not paid any pension, the petitioner was constrained to approach this Court by way of the present petition. 3. This petition was entertained by the Court by issuance of notice for final disposal vide order dated 28.07.2006 and later a cheque was drawn in favour of the petitioner for Rs.52,320/­ to be paid by way of gratuity to the petitioner, and the same was handed over and subsequently, the petition was adjourned from time to time and which ultimately led the Court to consider the issue of pension and interest on the gratuity amount which has been paid at a belated stage. As a result of this, on 30.03.2007, the Court was pleased to admit the petition. Later on, the petition was heard in the month of April, 2008, wherein, the Court was pleased to pass the following order, after hearing the parties to the proceedings on 09.04.2008, which reads as Under :- “1.Heard learned advocates appearing for the parties. 2. Rule is already issued by order dated 30th March, 2007. 3. As per the averments made in the affidavit­in­ rejoinder, the petitioner has already received amount of gratuity of Rs.52,320/­ by cheque dated 1.9.2006. The petitioner retired on 1.9.1998 and other claim of the petitioner is with regard to higher pay scale and the amount of pension to be paid to the petitioner. 4. Shri Ketan Dave, learned advocate, appearing for respondent No.2­Municipality submits that the petitioner herein had submitted an application for voluntary retirement on 20th May, 1998 and by order dated 2.6.2001, it was granted by the competent authority. Not only that, but by order dated 21.11.2005 settlement arrived between the Alternative Disputes Mechanism, the amount of gratuity is paid and in view of this, at the most, the petitioner is entitled for the interest and belated payment of gratuity from the date of settlement I.e. from 21.11.2005 till it was paid. 5. This Court is not fully impressed by the learned advocate appearing for the respondent­Municipality, who has failed to discharge his statutory duty to pay the amount of gratuity to the employee of the Municipality who retired voluntarily and her application came to be accepted from the date when she retired. 5. This Court is not fully impressed by the learned advocate appearing for the respondent­Municipality, who has failed to discharge his statutory duty to pay the amount of gratuity to the employee of the Municipality who retired voluntarily and her application came to be accepted from the date when she retired. There is no dispute about the date of voluntary retirement of the petitioner I.e. from 1.9.1998 and considering the decision of the Apex Court reported in 2003 (3) SCC 40 , respondent No.2 is directed to release the amount and pay the interest to the amount of gratuity already paid @ 8% from 1.9.1998 till actually it is paid by respondent No.2 within 30 days from the receipt of the order, failing which, salary of respondent No.2 shall not be released by the State Government. 6. Stand over to 13th May, 2008. 7. Copy of the order to be given to respondent No.2 and learned AGP.” 3.1. Subsequently, the matter was placed before the Lok Adalat as well, but unfortunately, the same has not amicably resolved, which ultimately, came up for consideration before this Court finally, on the issue, which has been raised in the petition. 4. Mr. Anand L. Sharma, learned advocate appearing for the petitioner has vehemently contended that the petitioner was appointed after following proper procedure in the municipal services by the respondent – Municipality and, therefore, having passed on more than 20 years, the petitioner deserves to be made available the pensionary benefits. It has been submitted that all other regular employees in the municipality are getting pension, whereas, discriminatory treatment is meted out to the petitioner and no such benefit is extended and as such, the action on the part of the respondent – authority in not extending the benefit is absolutely based on violation of the fundamental rights, precisely, Articles 14 and 16 of the Constitution of India. Mr. Sharma, learned advocate has further submitted that her appointment was on regular setup for municipality and even in past the municipality itself has recommended to extend such benefit to the petitioner, but the State Government is sitting tight over the issue and is not allowing the municipality to pay such benefit to the petitioner. On the contrary, according to Mr. Sharma, learned advocate, there seem to be no objection to the Nagar Panchayat to grant pension to the petitioner. On the contrary, according to Mr. Sharma, learned advocate, there seem to be no objection to the Nagar Panchayat to grant pension to the petitioner. It has been further submitted that one another similarly situated employee serving on the same post has been extended benefit of pension and by referring the name – Ms. Induben Ramniklal Kapasi, a contention is raised that equal treatment should have been meted to the petitioner. It has been further contended that the period which is required to make pensionary benefits available to the petitioner is adequate enough and, therefore, in no circumstances, without any just cause, such benefits be deprived of and, as such, the action on the part of the respondent authorities in not extending the benefit is unjust, arbitrary and tilted with mala fides. It has been further submitted that by virtue of specific Resolution, the municipality has appointed the petitioner and for a pretty long period such services of the petitioner has been availed and as such at the fag end, when the petitioner has sought voluntary retirement, it is not open for the respondent authority to deprive her from such legitimate benefit and, therefore, according to learned advocate Mr. Sharma, when petitioner is fully eligible to be considered for such benefit, such in­action is required to be corrected by this Court by granting the relief as prayed for in the petition. No other submissions have been made. 5. To meet with the stand taken by the learned counsel for the petitioner, Mr. Ketan Dave, learned advocate for respondent no. 2 has assisted the Court by contending that the Nagar Panchayat basically may not have the objection since the President of the Nagar Panchayat has appointed the petitioner by way of Resolution, but to assist the Court, it has been pointed out that the petitioner is not entitled to the pensionary benefit in view of the fact that there was a sanctioned setup of one post only in which, one lady Ms. Induben Ramniklal Kapasi was already working and, therefore, the appointment of the petitioner was beyond the setup. Though at the relevant point of time, the Nagar Panchayat has requested to consider the case, but in view of such situation, if the State Government has no objection, then, such benefit may be made available to her, but the fact remains that her appointment was not on the sanctioned post. Though at the relevant point of time, the Nagar Panchayat has requested to consider the case, but in view of such situation, if the State Government has no objection, then, such benefit may be made available to her, but the fact remains that her appointment was not on the sanctioned post. It has been contended that whatever available benefits were to be paid, have already been paid and for which no grievance can be raised by the petitioner. Of course, Mr. Dave, learned advocate has submitted that for the delayed payment of gratuity, appropriate rate of interest can be awarded. But to an employee who is appointed without sanction of the government authority, and beyond the sanctioned setup, then, such financial burden, whether to be shifted upon the State or not, is a question which is left to the discretion of the State authorities. Mr. Dave, learned advocate has filed an affidavit­in­reply of the Chief Officer, Mr. Bipin M. Somani, who was at the relevant point of time working in the municipality and has invited attention that only those employees who are appointed on the full time basis which are created with the sanction of the competent authority, are entitled to the benefit of pension and as such the petitioner not being in the setup and appointed without any approval from the competent authority, such benefit is not amenable to the petitioner. 6. In addition to this, learned Assistant Government Pleader appearing on behalf of the State authority has vehemently opposed the petition mainly on the ground that the petitioner was appointed on the post which is not sanctioned and on the sanctioned post, there was already one employee who was working, who was legitimately entitled to have such benefit and as such, the irregular appointment of the petitioner made by the municipality, precisely by the President, without approval of the State authority, is not entitled to have such benefit. It has been ultimately contended that in the Nagar Panchayat, on various places, local elected representatives are recruiting the employees without concurrence of the State authorities and then making an attempt to impose financial burden on the State exchequer by recommending for giving monetary benefits. It has been ultimately contended that in the Nagar Panchayat, on various places, local elected representatives are recruiting the employees without concurrence of the State authorities and then making an attempt to impose financial burden on the State exchequer by recommending for giving monetary benefits. In this case, precisely, it has happened that the petitioner’s appointment was made by the President of the municipality, resolution was passed, but there was no sanction to such resolution and, therefore, unilaterally when an employee went on continuing with the assistance of municipality, then cannot be shifted upon the State authority for extending monetary benefits. On the contrary, on perusal of the record, her appointment was subject to provisions of Section 203 of the Gujarat Panchayat Act, later on converted into municipality and in ‘Balmandir’, run by the Nagar Panchayat, only one post was sanctioned on which a permanent Assistant Teacher was already working, who was Smt. Induben Ramniklal Kapasi. The petitioner was appointed much prior to the said lady employee’s retirement in the year 1992 and as such, the petitioner’s appointment since de hors the Rules and the provisions of the Act, no sanctity to be attached. As a result of this, the benefits are not rightly made available to the petitioner, since no approval was sought of the competent authority. There is hardly any question of extending such pensionary benefits and even otherwise, the petitioner has voluntarily retired from the post in question. Learned AGP Ms. Vrunda Shah has then relied upon a specific communication made by the Collector to Gadhada Nagar Panchayat, Chief Officer, in which in no uncertain terms, it has been mentioned that the petitioner's employment was de hors the provisions of law and such irregularly appointed persons/employees are not entitled to any pensionary benefits. As a result of this, it was requested not to allow the petition. It has been further contended that simply because the petitioner has served for a period of more than 20 years, ipso facto, would not entitle her to seek benefit which, otherwise not amenable to her. Considering this, a request is made to dismiss the petition. 6.1. Additionally, learned AGP Ms. Vrunda Shah has further submitted that the petitioner was already voluntarily retired from the services and after almost a period of more than two and half years, a request is tried to be made, which otherwise is impermissible in law. Considering this, a request is made to dismiss the petition. 6.1. Additionally, learned AGP Ms. Vrunda Shah has further submitted that the petitioner was already voluntarily retired from the services and after almost a period of more than two and half years, a request is tried to be made, which otherwise is impermissible in law. As a result of this, the petition being meritless, the same deserves to be dismissed. 7. Having heard the learned counsel for the respective parties and having gone through the material on record, it appears that no doubt the petitioner was appointed in the year 1976, but then, has sought voluntary retirement in the year 1998, which is evidently reflecting from the record. It is not in dispute that on the sanctioned post, one which is available with the Nagar Panchayat, one another lady employee as named above was already working, who was regularly recruited whereas the present petitioner has been appointed by mere Resolution of the municipality without any concurrence or approval from the competent authority and further more, only one post was available, whereas the petitioner was additionally appointed and which is de hors the procedure and the provisions. As a result of this, it appears from the record that the Collector then had examined the issue and has clearly found that the petitioner’s appointment was not in consonance with the recruitment procedure which is prescribed by the provisions of the Gujarat Panchayat Act, and the recruitment is clearly without prior approval from the competent authority, such employees are not entitled for any pension. 7.1. When that be so, there is hardly any contention available to the petitioner to seek such benefit of pension, which is otherwise available to the regularly recruited persons. 7.2. It was also found that the name of the petitioner was no doubt called from the employment exchange, but one employee only was interviewed on 21.10.1976. As a result of this, purely on ad­hoc and temporary basis, the petitioner was appointed. It appears from the appointment letter which has been produced in the petition at page 5 of the compilation that her appointment was subject to the provisions contained under Section 203 of the Gujarat Panchayat Act and later on, she tendered her voluntary retirement. 7.3. As a result of this, purely on ad­hoc and temporary basis, the petitioner was appointed. It appears from the appointment letter which has been produced in the petition at page 5 of the compilation that her appointment was subject to the provisions contained under Section 203 of the Gujarat Panchayat Act and later on, she tendered her voluntary retirement. 7.3. In addition to this, a perusal of the communication is clearly opining that there is no permission sought for such recruitment of the petitioner and, therefore, not entitle to have the same benefit as that of other regularly appointed employees within the setup of municipality. It further appears that the stand of the respondent Panchayat, which is taken in an affidavit­in­reply, it is also loud enough to suggest that her appointment was not in consonance with the provisions of law and, therefore, the stand which is reflecting from the affidavit needs to be considered. Hence, the relevant paragraph contained in the affidavit­in­reply filed by the Chief Officer, Nagar Panchayat are quoted herein after :­ “6. As pointed out herein above, petitioner was appointed on temporary basis as an Assistant Teacher in Balmandir, w.e.f. 1.11.1976. Petitioner was given appointment over and above the sanctioned post, in the sanctioned set up of Gadhada Nagar Panchayat on temporary basis by the then President of Gadhada Nagar Panchayat. It is denied that the petitioner was appointed after due procedure of law. I state that petitioner’s appointment was not in accordance with provisions of Gujarat Panchayat Act and Rules framed under the said Act. The said appointment was not made in accordance with the provisions of recruitment rules and after following due procedure for regular appointment. I state that previous approval of the competent authority in accordance with the provisions of 203 of the Gujarat Panchayat Act, 1961 and Section 227 of the Gujarat Panchayat Act, 1993, for the purpose of said recruitment was not obtained. Moreover, the said recruitment was not made in accordance with the provisions of Gujarat Panchayat Services (Qualification & Recruitment) Rules as well as Government circulars and instructions issued from time to time, in this regard. I therefore, submits that petitioner’s appointment was de hors the rules and provisions of Gujarat Panchayat Act. The said appointment cannot be treated as a regular appointment in accordance with the provisions of the Gujarat Panchayat Act and Rules. 7. I therefore, submits that petitioner’s appointment was de hors the rules and provisions of Gujarat Panchayat Act. The said appointment cannot be treated as a regular appointment in accordance with the provisions of the Gujarat Panchayat Act and Rules. 7. I submit that petitioner had continued in service as a temporary employee upto 31.08.1998 I state that petitioner had vide her letter dated 20.05.1998 (Annexure­ “B” to the petition) addressed to the Chief Officer, Gadhada Nagar Panchayat, requested for voluntary retirement from service w.e.f. 31.08.1998. Accordingly, her request was granted by the Chief Officer, and an order dated 02.06.2001 (Annexure “C” to the petition) was issued in this regard by the Chief Officer. I state that petitioner had thus continued in services as a temporary employee from 01.11.1976 to 31.08.1998. 8. I state as per the provisions of Govt. Resolution bearing Case No. NPAM­1083­1330­6­1 dated 10.10.1983, read with Govt. Resolution bearing Case No. NPAM­1094­ 2011­2 dated 28.11.1994 and other Govt. Resolutions issued from time to time in respect of benefit of pension payable to Panchayat Employees, it is clear that only those employees, who are working on full time posts which are created with necessary sanction from the Competent Authority, are entitled to the benefits of pension. As pointed out herein above, petitioner was employed on a temporary basis as per terms and conditions of appointment order, over and above the post sanctioned in the set up of Gadhada Nagar Panchayat. I state that no approval of the Competent Authority was obtained in respect of petitioner’s recruitment. Petitioner is, therefore, not entitled to claim the benefits of pension as per Government Resolutions issued in this regard. 9. I state that the District Development Officer, Bhavnagar District Panchayat, Bhavnagar has vide its letter dated 13.07.2001, addressed to the Chief Officer, Gadhada Municipality reiterated the aforesaid position. It is further stated in the said letter that petitioner was in service upto 31.08.1998 with the Gadhada Municipality and therefore, the Collector is the appropriate int his regard. A copy of the above­referred letter was sent to the petitioner. 10. It is further stated in the said letter that petitioner was in service upto 31.08.1998 with the Gadhada Municipality and therefore, the Collector is the appropriate int his regard. A copy of the above­referred letter was sent to the petitioner. 10. …............I state that since the petitioner was appointed on temporary basis, over and above the sanctioned post set up of Gadhada Nagar Panchayat and her appointment was made without necessary approval of the Competent Authority, her pay fixation for the purpose of pension can not be carried out by the Competent Authority of the Local Fund Office, Bhavnagar.” 8. In view of the aforesaid categorical stand taken even by the municipality, it appears that the petitioner was appointed de hors the procedure setup by Rules and beyond the setup of the municipality and as such, such employee is not entitled to seek benefit of pension. Apart from that, a bare reading of the relevant provisions referred to and Section 203 of the Gujarat Panchayat Act, it also evidently suggest that while recruiting the employee it is obligatory to obtain the approval from the competent authority which is undisputedly visibly not taken. As a result of this, the claim with regard to relief related to pensionary benefit is not available, as prima facie it appears. 9. Apart from this, so far as claim with regard to interest for delayed payment of gratuity in an order dated 09.04.2008, already a reference is made about the decision delivered by the Apex Court reported in 2003 (3) SCC 40 , and directed to release the amount of interest to the extent of 8% per annum from 01.09.1998, until the amount is paid for which, if such interest amount has not been paid, it is specifically directed that the same be paid within a period of three weeks from the date of the receipt of the writ of this order. 10. In view of the aforesaid discussion, the petition stands disposed of with the aforesaid observations. Rule is discharged with no order as to cost.