JUDGMENT : A.S. SUPEHIA, J. 1. Admit. Mr. Rajesh Mankad, learned advocate waives service of notice of admission on behalf of respondent No.1.1 and Mr. Manohar D. Rahevar, learned AGP waives service notice of admission on behalf of respondent No.2. 2. Present appeal under Clause 15 of Letters Patent, 1865 is directed against the judgment dated 20.02.2024 passed by learned Single Judge in captioned writ petition, wherein the learned Single Judge has directed the appellant authorities to pay pension and retiral benefits to the late petitioner (represented through his legal heirs) by considering his qualified service of 22 years i.e. 1977 to 1999 irrespective of the order of compulsory retirement dated 21.01.2004. At this stage, it is pertinent to note that the original petitioner, was retired compulsorily vide order dated 21.01.2004 by way of punishment. Along with such directions, the learned Single Judge has also directed to pay the interest of 6% p.a. from the date of filing of the petition till the petitioner is paid with such benefits. 3. Mr. H.S.Munshaw, learned advocate appearing for the appellant - authorities has submitted that the learned Single Judge has ignored in a very vital respect that the late petitioner had obtained the certificate from the Medical Board on 16.10.2007, after he was compulsorily retired vide order dated 21.01.2004. He has submitted that in fact, the original petitioner (deceased) used to remain absent from his services and hence, the appellant - authorities were constrained to issue notice to him, however, he did not respond to the same. Learned advocate, Mr. Munshaw has submitted that after the appellant - authorities considered his continuous absence from the post, they were constrained to pass the impugned order of compulsory retirement. Mr.Munshaw, learned advocate for the appellant - authorities has further submitted that the original petitioner (deceased) did not produce any certificate from Medical Board though he was requested to do so and after the order of compulsory retirement was passed, he appeared before the Medical Board on 16.10.2007 and obtained the certificate, in which it is certified that the original petitioner (deceased) is not fit for the post of teacher. Learned advocate has further submitted that the original petitioner (deceased) assailed the order of compulsory retirement which was passed in the year 2004 by filing the captioned writ petition, after a period of 07 years in 2011 and hence, the learned Single Judge has erred in quashing and setting aside the order of compulsory retirement and directing the appellant - authorities to grant the retiral benefits that too with interest. Thus, it is urged that the present appeal may be allowed by setting aside the impugned order of the learned Single Judge. 4. In response to the afore-stated submissions, Mr. Mankad, learned advocate for the respondent No.1 - original petitioner (deceased) and respondent No.1.1 (legal heir of original petitioner) has submitted that the original petitioner (deceased) was suffering from paralysis and was unable to speak and hence, he could not attend the school regularly. It is submitted that this fact was known to the appellant - authorities and is recorded in the order of compulsory retirement and hence, a notice was issued to him calling upon his explanation with regard to his absence. Learned advocate Mr.Mankad has submitted that in fact, the original petitioner (deceased) was unable to move and could not speak and hence, ultimately he was taken to the Medical Board by his relatives and he obtained the certificate on 16.10.2007 certifying that he is not fit for duty as a teacher and ultimately, produced the certificate before the appellant - authorities, however, the order of compulsory retirement was not revoked. Mr. Mankad, learned advocate has submitted that in fact, since the original petitioner (deceased) was not paid any terminal dues like provident fund, gratuity and leave encashment, a legal notice was issued on 09.05.2007 to the appellant - authorities and since nothing was paid, he was constrained to file the captioned writ petition assailing the order of compulsory retirement. Mr. Mankad, learned advocate has submitted that the learned Single Judge has precisely considered the case of the original petitioner (deceased) and hence, it is urged that the judgment and order passed by the learned Single Judge may not be interfered with. 5. Mr. Mankad, learned advocate has submitted that the learned Single Judge has precisely considered the case of the original petitioner (deceased) and hence, it is urged that the judgment and order passed by the learned Single Judge may not be interfered with. 5. The established facts from the pleadings are that the original petitioner was appointed as a teacher from 21.07.1977 and he rendered 22 years of service and after he suffered a paralytic stroke, he was unable to perform his duty as a teacher and he lost his voice and hence, he remained absent. 6. The order of compulsory retirement dated 21.01.2004 in fact refers that he was issued a show cause notice dated 24.12.2003 by the appellant - authorities wherein it is categorically recorded that the original petitioner was suffering from an incurable disease and since he is remaining absent why he should not be retired compulsory within a period of three months. It is also recorded in the order of compulsory retirement that the original petitioner is not even able to work or write and hence, he was compulsory retired under the provisions of Rule 6(4) of the Gujarat Panchayat Civil Services (Disciplinary and Appeal) Rules, 1997 read with provisions of Rule 161 of the Bombay Civil Services Rules. Thus, the order of compulsory retirement is premised on the fact that the original petitioner was unable to perform his duties, and the period, for which he remained absence, was treated as unauthorised absence, and he was retired by way of punishment by invoking the Rule 6(4) of the Gujarat Panchayat Civil Services (Disciplinary and Appeal) Rules, 1997 read with Rule 161 of the Bombay Civil Services Rules. It appears that thereafter, the original petitioner appeared before the Medical Board on 24.09.2007 and accordingly, the Medical Board issued a certificate dated 16.10.2007 certifying that he is not found fit for duty as a teacher. Since the original petitioner was not paid the benefits like provident fund and gratuity, he issued a legal notice to the appellant - authorities on 09.05.2011 to pay the same. However, it appears that thereafter, the original petitioner filed the captioned writ petition challenging the action of the appellant - authorities of compulsory retiring him from service and also the denial of retiral benefits. 7. However, it appears that thereafter, the original petitioner filed the captioned writ petition challenging the action of the appellant - authorities of compulsory retiring him from service and also the denial of retiral benefits. 7. We have perused the inquiry proceedings which are produced on record at page No. 51, which specifically reflects that the proceedings were kept on 04.08.2003 and 30.08.2003 for hearing the respondent – employee (original petitioner). It is noticed by us that the respondent – employee (original petitioner) did not do any work for last three years and he was unable to do so because of his inability as he suffered paralytic stroke. The Presenting Officer has contended in the inquiry proceedings that though the original petitioner was suffering from a serious disease, he did not obtain any medical certificate. The order of compulsory retirement also refers that no medical certificate is produced by him from the Medical Board. The Charge No.3 also refers in the said report that he had unauthorizedly stayed in one small room (Ordi) of the school. 8. At this stage, it would be apposite to refer to Rule 52 of the Gujarat Civil Service (Pension) Rules 2002 (“Rules 2002” for short), which enables the grant of invalid pension to a Government employee, who has completed 10 years of qualifying service and he is permitted to retire from Government service before reaching the age of superannuation on production of medical certificates. Rule 52 and 52(2) reads as under: “52. Conditions for grant of Invalid Pension: (1) An Invalid Pension shall be granted to a Government employee, who has completed ten years of qualified service and permitted to retire from Government service before reaching the age of superannuation, on production of a medical certificate in the Form -5 to the effect that he is by mental or bodily infirmity incapacitated for Government service or for a particular branch of Government service to which he belongs. (2) Appointing Authority shall have powers to refer a Government employee to the Medical Board for opinion as to whether he is by mental or bodily infirmity incapacitated for Government service or for a particular branch of Government service to which he belongs.” 9. (2) Appointing Authority shall have powers to refer a Government employee to the Medical Board for opinion as to whether he is by mental or bodily infirmity incapacitated for Government service or for a particular branch of Government service to which he belongs.” 9. The provisions of sub-Rule (2) of Rule 52 of the Rules, 2002 directs that the appointing authority shall have powers to refer a Government employee to the Medical Board for opinion as to whether he is by mental or bodily infirmity incapacitated for Government service. In the instant case, the appellant - authorities had insisted from the respondent – employee (original petitioner) to produce certificate from the Medical Board proving his incapacity or infirmity for the service. However, it was always open for the appointing authority or the appellant - authorities to refer the original petitioner (deceased) to the Medical Board for opinion, as mentioned under the Rules certifying his infirmity or incapacity. The appellant - authorities did not adopt such procedure and called upon the original petitioner (deceased) to produce such certificate from the Medical Board and since the original petitioner (deceased) was unable to do so due to his incurable disease and was paralytic, the appellant - authorities shifted the burden upon the original petitioner (deceased)/employee to produce such certificate. Ultimately, left with no other choice, the original petitioner (deceased) approached the Medical Board in 2007 and procured the certificate that he was not fit for the job of teacher. When such certificate was procured by him, it was always open for the appellant - authorities to reconsider the order of compulsory retirement, which was passed by way of punishment wiping out his entire service of 22 years. However, the appellant - authorities did not do so and did not reconsider the case of the original petitioner (deceased) after such certificate was produced by him. 10. The appellant - authorities ought to have converted the order of compulsory retirement and it was always open for the appellant - authorities to retire the (original petitioner) on invalid pension as he had completed 22 years of service, before he was declared unfit. During the pendency of the writ petition, the original petitioner has passed away on 10.03.2019. 11. The appellant - authorities ought to have converted the order of compulsory retirement and it was always open for the appellant - authorities to retire the (original petitioner) on invalid pension as he had completed 22 years of service, before he was declared unfit. During the pendency of the writ petition, the original petitioner has passed away on 10.03.2019. 11. Hence, we find that the action of the appellant - authorities in compulsory retiring the original petitioner (deceased) by way of punishment was uncalled for looking to his medical condition. As narrated herein above, since the appellant - authorities were already aware of the medical condition and the incurable disease of the original petitioner (deceased), it was always open for them to resort to the provision of Rule 52(2) of the Rules, 2002. 12. Hence, we find that the action of the appellant - authorities of compulsory retiring the original petitioner (deceased) by way of punishment was uncalled for and we are in agreement with the order passed by the learned Single Judge. However, we cannot also ignore the fact that the original petitioner (deceased) has assailed the order of compulsory retirement after a period of almost 07 years by filing the captioned writ petition and hence, in our opinion the direction issued by the learned Single Judge granting interest on the retirement benefits is uncalled for. Thus, in the light of the foregoing reasons, we modify the order of compulsory retirement by way of punishment to that of public interest, which would entitle the original petitioner (deceased) all the retiral benefits and hence, the appellant - authorities are directed to pay retiral benefits to the original petitioner(deceased) considering his 22 years of service. However, we set aside the directions with regard to the grant of interest. The retiral benefits shall be paid to the (original petitioner) No.1 through his legal heir of the petitioner within a period of two months from the date of receipt of the order, failing which, such amount will carry interest @ 6% p.a. 13. Accordingly, the Letters Patent Appeal is dismissed. 14. Consequentially, the Civil Application (For Stay) also stands disposed of.