: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2983 OF 2006 WRIT PETITION NO.2983 OF 2006 WRIT PETITION NO.2983 OF 2006 Pensioners Association, Ichalkaranji Through Ashok B. Bedagkar .. Petitioners. Versus The Chief Officer, Ichalkaranji & Ors. .. Respondents. Mr.Umesh J. Joshi for the petitioners. Ms.Archana Kololgi i/b.Mr.T.S.Ingale for respondent No.1. Mr.A.H.Palekar, A.G.P. for respondent Nos.2 and 3. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATE : 26th June, 2008. DATE : 26th June, 2008. DATE : 26th June, 2008. P.C.: P.C.: P.C.: 1. By this petition, the petitioner which claims to be a registered association of pensioners, who were the employees of the Ichalkaranji Municipal Council, Dist. Kolhapur, challenge the order passed by the Commissioner and Director, Directorate Municipal Administration, Worli, Mumbai dated 30.12.2005. 2. That order is made in exercise of the powers vested by Section 76 of the Maharashtra Municipal Nagar Panchayati & Industrial Town Act, 1965 in the Director. The Director has by that order directed that the persons, who have retired from the service of the Municipal Council : 2 : should be given the benefit of pension and gratuity as per the provisions of the Maharashtra Civil Services (Pension) Rules 1982. But if those employees, who are claiming gratuity benefits, as per the provisions of Payment of Gratuity Act, 1972, then, they will not be entitled for pension benefits. Therefore, the employees will have to exercise an option whether they want to opt for pension benefit under the Service Rules or for payment of gratuity under the Payment of Gratuity Act, 1972. 3. The only ground on which the order is challenged is that under Section 76 of the Act, the Director has no power to issue such a direction. In our opinion, the challenge have no substance. Sub-Section (2) of Section 76 of the said Act reads as under :- "Section 76 : Appointment of other Officers and "Section 76 : Appointment of other Officers and "Section 76 : Appointment of other Officers and servants :- servants :- servants :- (1) ..... (2) Subject to the provisions of sub-section (3), the qualifications, pay, allowances and other conditions of service and the method of recruitment of any such officers and servants, : 3 : excluding the posts equivalent to Class IV posts in the State Government, shall be determined by general or special order made by the Director in this Government, the qualifications, pay, allowances and other conditions of service and method of recruitment shall be determined by bye-laws made by the Council in this behalf." 4. Perusal of the above quoted provision shows that the Director has power to issue orders regarding the qualifications, pay, allowances and other conditions of the service of the employees of the Municipal Council. Therefore, the Director will get the power to lay down the condition as to when pension under the Pension Rules will be payable. 5. The learned Counsel appearing for the petitioners relied on a judgement of the Hon’ble Supreme Court in the case of Municipal Corporation of Delhi v/s. Dharam Municipal Corporation of Delhi v/s. Dharam Municipal Corporation of Delhi v/s. Dharam Prakash Sharma & Anr. reported in 1998 II CLR 574 Prakash Sharma & Anr. reported in 1998 II CLR 574 Prakash Sharma & Anr. reported in 1998 II CLR 574. In the judgement, the Hon’ble Supreme Court has held that unless there is a provision in the Pension Rules laying down that an employee, who is receiving pension cannot receive gratuity under the Payment of Gratuity Act and he is not entitled to claim gratuity under the Payment of : 4 : Gratuity Act, 1972. The Hon’ble Supreme Court has by that judgement not decided or held that the Director of the Municipal Administration is not an Authority competent to make a Rule which says that if an employee, who is receiving gratuity under the Payment of Gratuity Act, then, he will not be entitled to pension under the Service Rules. In fact, the Rule that has been made by the Director is in consonance with the judgement of the Hon’ble Supreme Court, referred to above because that judgement says that in case there is a provision contained in the pension Rules, then, gratuity under the Payment of Gratuity Act is not payable. We do not see any illegality in the order made by the Director which is impugned in the petition. It gives option in clear terms to the employees of the Municipal Council that they can either opt for pension under the Service Rules or for payment of gratuity in accordance with the payment of Gratuity Act. 6. We do not find any substance in the petition. Petition is, therefore, dismissed. 7. Rule is discharged with no order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) : 5 : (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)