JUDGMENT : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 27.04.2018, by which, his request for granting all pensionary benefits for his services rendered with the Sanand Nagarpalika has been rejected. 2. Facts in brief are as under: 3. It is the case of the petitioner that the petitioner was appointed as a peon with the Sanand Nagarpalika on 01.08.1990. In discharge of his duties as a peon, the petitioner would operate street lights and also work in the water works department of the Nagarpalika. 4. He approached the Labour Court by way of Application No.358 of 1990 for the benefit of regularization, however, it is the case of the petitioner that he withdrew the same on 17.01.1991 as a result of a settlement arrived at. It appears that the petitioner continued to serve the Nagarpalika and retired on superannuation on 30.04.2013. 5. Ms.Mamta Vyas learned advocate for the petitioner would draw the attention of the Court through relevant pages of service book which details read as under: A. The service book recorded a settlement that was arrived at between the petitioner and the Nagarpalika based on which the entry was made in the service book. B. The service book also records that the petitioner was awarded a regular pay scale of Rs.196-232 as per Desai Pay Commission and increments were released periodically from 01.08.1991. C. Group insurance benefits were also extended to the petitioner. D. From time to time, his pay was revised and regular pay scales in accordance with the pay commission reports viz. The 5th and 6th Pay Commission were also granted to the petitioner which are also evident from the record of the service book. 6. In short the case of the petitioner is that for all purposes the petitioner was discharging his duties as a regular employee of the Nagarpalika and on his retirement therefore he was entitled to the benefits of pension which have been denied by the Nagarpalika. 7. Mr. K.M. Sheth learned counsel for the respondent- Nagarpalika would draw the attention of this Court to the affidavit-in-reply filed and justified the communication of the Nagarpalika dated 27.04.2018, by which, the denial of pensionary benefits was on the ground that the petitioner was not appointed on a sanctioned post. 7. Mr. K.M. Sheth learned counsel for the respondent- Nagarpalika would draw the attention of this Court to the affidavit-in-reply filed and justified the communication of the Nagarpalika dated 27.04.2018, by which, the denial of pensionary benefits was on the ground that the petitioner was not appointed on a sanctioned post. Mr.Sheth would also contend that the petitioner was appointed purely on a temporary basis as a peon. The petitioner withdrew the case before the Labour Court and therefore having failed to secure regularization and having worked on a fixed salary till his retirement, the petitioner cannot claim pension. 8. Mr.Sheth would further submit that having retired in the year 2013 and having kept quite for a period of five years thereafter and once the amount of gratuity and P.F. was paid, the petitioner cannot turn around and now claim the benefit of pension. 9. He would also draw the attention of the Court to the sanctioned set up and indicate that nowhere was a post of peon on the sanctioned set up of Nagarpalika and therefore, his appointment cannot be treated as regular so as to be counted for the purposes of pension. Distinguishing the case of a co-employee, Mr.Sheth submitted that in the case of Kamuben since her husband was on the sanctioned set up it is evident from the copy of the service book produced with the sur-rejoinder, the case of the petitioner cannot be compared to that of Kamuben. 10. Ms.Aishvarya Gupta learned AGP on instructions of the officer would submit that there were 94 sanctioned posts on the set up of the Nagarpalika of which 68 have been filled in. 26 posts are vacant. There was no post for peon on the sanctioned set up. The petitioner cannot compare his case with that of the other employee as is evident from the service book of the other employee which would suggest that he was working on the sanctioned set up. 11. Considered the submissions made by the learned advocates for the respective parties. The perusal of the service book and details which have been reproduced herein above, would indicate that the petitioner continued to be engaged by the respondent-Nagarpalika and was extended the benefits of regular pay scale and granted the benefits the revisions in the pays on account of the pay revisions such as the Revision of Pay Rules 1998 etc. The perusal of the service book and details which have been reproduced herein above, would indicate that the petitioner continued to be engaged by the respondent-Nagarpalika and was extended the benefits of regular pay scale and granted the benefits the revisions in the pays on account of the pay revisions such as the Revision of Pay Rules 1998 etc. He was also granted the benefit of group insurances and increments were released periodically during his tenure of service. All these circumstances would indicate that when the petitioner retired on superannuation after rendering services to the Panchayat from 1990 to 2013 for 23 years, it is not open for the Panchayat now to contend that since his appointment was not on a regular set up, the petitioner was not entitled to the benefits of pension. 12. The contention of Mr.Sheth that the petitioner was working as a peon and therefore there was no sanctioned set up will also not hold good in view of the fact that from the service details of the petitioner what is evident is that in addition to his duties of operating the streetlights he was also working in the water works department. From the sanctioned set up produced by the respondents in the affidavit-in-reply there was a sanctioned post of Pump-man. 13. As far as the contention of Mr.K.M.Sheth for the respondent no.1 that there is delay in view of the fact that the petitioner has approached after five years, the contention deserves to be rejected firstly on the ground that by a communication dated 27.04.2018, the petitioner was informed that his case for pensionary benefits has been rejected on the ground that he was not on the sanctioned set up. Ms.Mamta Vyas has also produced the judgment of this Court passed in Letters Patent Appeal No.2355 of 2010 in support of her submission that pension is not a bounty that has been paid from month to month and that the cause of action arise every month. The relevant portion of the judgment of the Division Bench reads as under: “Now, it is just settled that the pension is not a bounty and person has a right to claim it. It is paid month to month, and therefore, cause of action arises every month. The relevant portion of the judgment of the Division Bench reads as under: “Now, it is just settled that the pension is not a bounty and person has a right to claim it. It is paid month to month, and therefore, cause of action arises every month. In this background, it was not open to the learned Single Judge to deny the death benefits to a widow on the ground of delay. As we have noticed that the husband of the appellant was in service of the State for nine years – between 15th January 1954 and 23rd January 1963, we hold that the petitioner is entitled to the death benefits, to which a widow of a Government servant is entitled under the law. If the record referred above is available, the respondent should take into consideration, the date of appointment; scale of pay; date of death as shown above and determine the family pension, gratuity, provident fund, etc., to which the petitioner is entitled and pay the same along with 8% interest within two months from the date of production of copy of this Order. On failure, the respondent will pay cost of Rs. 10,000/= in favour of the widow-petitioner. The learned Single Judge having failed to consider the matter in proper aspect, we set-aside the Order dated 11th August 2010 passed by the learned Single Judge and remit the case to the respondents, with the aforesaid directions.” 14. Be that as it may, the question whether such an employee of a Panchayat or Nagarpalika can be denied pension is no longer in the realm of doubt. The case of Harijan Paniben Dudabhai v. State of Gujarat and others reported in (2016) 12 SCC 801 has considered the issue at hand in the context of a panchayat employee and held that it is not open for the employer to deny pension merely because it is found that such an employee is not within the sanctioned set up. It will be relevant to reproduce para 16 to 18 of the judgment which reads as under: “18. In appeal arising out of SLP(C) No.1305 of 2011 the appellant, 55 per cent physically handicapped, was appointed as Typist-cum-Clerk on 13.10.1969 and retired from service in the year 2001. It is true that his appointment was after the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967 and other set of Rules came into force. In appeal arising out of SLP(C) No.1305 of 2011 the appellant, 55 per cent physically handicapped, was appointed as Typist-cum-Clerk on 13.10.1969 and retired from service in the year 2001. It is true that his appointment was after the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967 and other set of Rules came into force. But nothing has been placed on record indicating any prevalent procedure which was allegedly infracted or any reason why his appointment could be termed as illegal or invalid. All through his service till he retired, he was paid all the emoluments and salary like any regular employee. We see no reason why the appellant could be denied the pensionary benefits and gratuity. We allow this appeal and direct the respondent to pay to the appellant family pension and the amount of gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.” 15. The Division Bench of this Court in case of State of Gujarat v. Chandubhai Chhotabhai Patel & Ors. reported in 2018 (3) GLR 2658 considered the decision in the case of State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni & Ors. reported in AIR 1984 SC 169 and the case of Harijan Paniben Dudabhai (supra) and held that it is not open for the Panchayat or Municipality to deny pensionary benefits on the ground that the petitioner's appointment was not on the sanctioned post. The decision in the case of R.K.Soni (supra) was extensively reproduced and the salient feature is reproduced in para 9 in case of Chandubhai Chhotabhai Patel (supra). “9. Salient features of the judgment in R K Soni (supra) therefore can be summarized as under: (A) Panchayat Institutions were grass root level institutions carrying out functions of the State service assigned to them under the provisions of the Panchayat Act, 1961. Essential functions basic to the rural infrastructure and basic human needs are catered to by the Institution which is manned at the local cadre by its employees who were recruited through the Panchayats even prior to coming into force of the Gujarat Panchayat Act, 1961 with effect from 01.04.1963. Essential functions basic to the rural infrastructure and basic human needs are catered to by the Institution which is manned at the local cadre by its employees who were recruited through the Panchayats even prior to coming into force of the Gujarat Panchayat Act, 1961 with effect from 01.04.1963. (B) In the Panchayat Service, as in the State Service, Page 31 of 45 C/LPA/409/2017 CAV JUDGMENT the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master" (C) The employees of the Panchayat institution namely that of the local cadre carry the mark of the 'brand' of his origin and a classification on the basis of the source from which they came into the service, was sought to be justified as a reasonable classification. The Court held that it wasn't .Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved.” 16. Paragraphs 11 and 12 of the aforesaid decision read as under: “11. A conjoint reading of the provisions of the Bombay Village Panchayat Act and the Gujarat Panchayat Act bring out the following scenario: (A) Prior to 1/4/1963 the Gram Panchayat/Village Panchayat as per Section 9 of the Bombay Village Panchayats Act, 1958 was a Body Corporate by the name of "the Village Panchayat of....." having a perpetual succession and a common seal. (B) The Sarpanch had the power vested in him to take actions in implementation of the Panchayat's duties through Resolutions. (C) Section 61 of the Bombay Village Panchayats Act, 1958 provided that the Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay salaries from the Village Fund. (D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f 1.04.1963 therefore the Village Page 42 of 45 C/LPA/409/2017 CAV JUDGMENT Panchayat was competent to appoint its servants/officers and act through Resolutions. (D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f 1.04.1963 therefore the Village Page 42 of 45 C/LPA/409/2017 CAV JUDGMENT Panchayat was competent to appoint its servants/officers and act through Resolutions. The appointment of the Respondent made under such provisions was therefore valid and in accordance with the prevalent law in force, prior to the coming into force the provisions of Section 203 of the Gujarat Panchayats Act, 1961 and the Rules thereunder. Therefore it was not a case where the prior sanction of the Development Commissioner or the State was inevitably a sine-qua non. No such provision existed. That the Panchayat in discharge of its duties under Section 45 of the Bombay Act, through its Resolution of the Sarpanch appointed the Respondent herein. That such appointment was on a sanctioned post was not a germane consideration as it was so presumed to be in accordance with law and therefore the appointment could not have been termed to be irregular or illegal. (E) In the case of Harijan Paniben (supra) also, considering the question of appointment of servants prior to the 1961 Act which came into force on 1/4/1963, there was no question of a distinction being drawn on the appointment being on a sanctioned post or not, and therefore the Division Bench Judgment in the case of Dahyabhai (Supra) would, in our opinion, made a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned post, would not be in consonance with the law laid down in the case of Harijan Paniben (supra) and the judgment of the Constitution Bench in R.K.Soni (supra). It categorically held that all such employees carried a common birth mark and therefore Page 43 of 45 C/LPA/409/2017 CAV JUDGMENT to hold that the appointment was not on a sanctioned post or that it was irregular or that the Panchayat employee belonged to a non-converted gram panchayat could not have been held to be against the respondent as that would lead to a microscopic discrimination which was set aside by the Judgment of the Constitution Bench in the case of R.K.Soni (supra). (F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R K Soni (supra), the inevitable conclusion that is culled out is that the State is the master. (F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R K Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master. 12. Accordingly, we hold that the objections of the State and the Panchayat Authorities in the appeals on their behalf of denying the pensionary benefits to the Respondent amount to setting at nought an established and a settled principle of law as decided in the case of R K Soni (supra). The Respondent who served the Gram Panchayat is entitled to be granted pensionary benefits like pension and gratuity and other benefits that go hand in hand with the terminal benefits Page 44 of 45 C/LPA/409/2017 CAV JUDGMENT available to any other employee of the State who so retires. The appellants are, therefore, directed to pay the pensionary benefits to the employee within a period of eight weeks from today.” 17. In view of the decisions of the Supreme Court and this Court, the petition is allowed. The respondents are directed to compute the pensionary benefits of the petitioner and pay the same within a period of eight weeks from the date of receipt of copy of this order. The communication dated 27.04.2018 is quashed and set aside.