Gujarat High Court
Navinchandra Prabhudas Prajapati vs State Of Gujarat on 17 September, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1396 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 9523 of 2014
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 1396 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NAVINCHANDRA PRABHUDAS PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
MR. MANOHAR D.RAHEVAR, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 17/09/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Admit. Mr.Manohar D.Rahevar, learned Assistant
Government Pleader waives service of notice of admission on behalf
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of the respondent-State.
2. At the outset learned advocates appearing for the respective
parties have submitted that the issue raised in the present Letters
Patent Appeal is squarely covered by the order dated 11.07.2024
passed by this Court in group of appeals being Letters Patent Appeal
No.659 of 2024 and allied matters.
3. Learned advocate Mr.N.K.Majmudar for the appellant has
submitted that the learned Single Judge while rejecting the captioned
writ petition has placed reliance on the order passed by the learned
Single Judge being order dated 23.10.2008 passed in Special Civil
Application No.8950 of 2008 which would not apply in the facts of
the present case and in view of the order dated 11.07.2024 passed
in Letters Patent Appeal No.659 of 2024 and allied matters. So far
as another order dated 12.11.2009 passed by the Division Bench of
this Court in Letters Patent Appeal No.1705 of 2009 which is
considered by the learned Single Judge is concerned, it is submitted
that the same would not apply to the facts of present case.
4. In the captioned writ petition, the petitioner (appellant) has
prayed for the following relief:-
"7(B) Be pleased to issue appropriate writ, order or direction and
be pleased to direct the concerned authorities to pass an
appropriate order for granting regular appointment to the
petitioner from his initial date of appointment i.e. w.e.f. 26.7.2004
and respondents may kindly be directed to grant all consequential
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benefits to the petitioner and suitable directions have been prayed
for in this regard;"
5. Thus, the appellant has prayed for grant of regular
appointment from the initial date of appointment i.e. with effect
from 26.07.2004, so that he can be conferred the regular pay-scale
instead of fixed pay. The facts, which are not in dispute and as
recorded by the learned Single Judge, are that pursuant to the
application filed by the appellant seeking appointment on
compassionate ground, he was appointed as a Junior Clerk in fixed
salary of Rs.2500/- per month on ad-hoc basis by the order dated
26.07.2004. On completion of five years of service, the appellant
was given regular appointment in regular pay-scale for the post of
Junior Clerk.
6. The State Government published resolution dated 15.06.2004,
by which the policy for giving an appointment on fixed salary basis
came to be introduced for the first time with effect from 05.06.2004.
Thus, it is the case of the appellant that he is entitled to regular pay-
scale and regular appointment from 26.6.2004.
7. The learned Single Judge by placing reliance on the aforesaid
orders dated 23.10.2008 and 12.11.2009, has rejected the writ
petition. So far as the order dated 12.11.2009 passed by the Division
Bench in Letters Patent Appeal No. 1705 of 2009 is concerned, we
have perused the same. Perusal of the said order reveals that it
could not apply to the issue raised in the writ petition as the same
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confines to the appointment of an employee on compassionate
grounds. In the recent decision dated 11.07.2024 passed in the
group of appeals being Letters Patent Appeal No.659 of 2024 and
allied matters, this Court has considered this issue and policy of the
State Government.
8. On an identical issue, the Co-ordinate Bench in which order of
date of order and in which matter has held thus :-
"9. We have heard the learned advocates for the respective
parties and also perused the documents as pointed out by them.
10. Both the rival parties have filed the captioned Letters Patent
Appeals assailing the order passed by the learned Single Judge.
So far as the issue of conferring the regular pay-scale from the
initial date of appointment to the writ petitioners is concerned, the
same is more res integra and we are not inclined to tinker with
such directions.
11. In these group of LPAs, learned Single Judges have issued
directions to grant arrears w.e.f. 01.01.2020. It is noticed by us
that the appointments of the petitioners - respondent employees
have been made in the year of 2004- 2005. The writ petitioners
have placed reliance on the order dated 07.10.2002 passed in
Special Civil Application No.1579 of 2002 to substantiate their
claim. An averment is made that the writ petitioners of that writ
petition was appointed on fixed pay in 1994 on compassionate
appointment, and after the observations are made by this Court in
the judgement dated 07.10.2002, he is appointed on regular pay-
scale. On a perusal of the order dated 07.10.2002, we do not find
any such directions issued by the High Court. However, it appears
that the said petitioner is thereafter conferred the regular pay-
scale. In fact, the policy of appointing the dependent of the
deceased employee on compassionate appointment on fixed pay is
introduced by the State Government vide Government Resolution
dated 15.06.2004. All the writ petitioners, thus were appointed on
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fixed pay in the year 2004-2005 on fixed pay, and have filed the
writ petitions claiming regular payscale after a long delay in the
years 2019-2023.
12. The issue with regard to conferring the arrears either from
01.01.2020 or for 3 years from the date of filing of the writ
petition, as declared by the Apex Court in the in the cases of Shiv
Dass (supra) and Tarsemsingh (supra), was neither raised nor
examined by the Coordinate Benches. The Division Bench in the
order dated 03.10.2023 passed in Letters Patent Appeal No.287 of
2023 has conferred the consequential benefits to the original
petitioner - employees from the date of appointment, after directing
the respondents to give them regular appointment in the regular
pay-scale from the initial date of appointment. However, it is
pertinent to note that subsequently, the Division Bench in the order
dated 16.10.2023 passed in Letters Patent Appeal No.1293 of 2023
has upheld the decision of the learned Single Judge granting
arrears from 01.01.2020. SLP (Civil) (Diary No).1024 of 2023
against judgement and order dated 05.09.2022 in LPA No.1050 of
2022 in SCA No.14642 of 2019 has been withdrawn by the District
Development Officer on 24.05.2023, and SLP (Civil) Diary
No.30685 of 2023 against the judgment and order dated
19.04.2023 in LPA No.464 of 2023 in SCA No.10916 of 2020 has
been dismissed in limine.
13. When a specific query was raised to the learned advocates
appearing for the respective parties regarding fixation of the date
01.01.2020 for restricting the date of arrears; it is pointed out that
for the first time in the judgement and order dated 18.04.2022
passed in group of writ petitions being Special Civil Application
No.14642 of 2019 and allied matters, the learned Single Judge has
restricted arrears from 01.01.2020 since the writ petitions were
filed in the year 2019, and no convincing explanation is tendered.
It appears that thereafter, a view has been taken by learned Single
Judges restricting the arrears from 01.01.2020. We did not also
find any reasons assigned by the learned Single Judges for fixing
the date of 01.01.2020 for grant of arrears. Fixing a particular
cut-off date for grant of arrears or consequential benefits has to be
on some rationale, which should be reflected in the orders
conferring such benefits.
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14. The employees before us have contended that they are entitled
to arrears from their initial date of appointment and not from
01.01.2020, whereas the State has prayed for restricting it for
three years.
15. In our considered opinion, the date 01.01.2020 cannot be made
applicable in all the cases uniformly in wake of the fact that the
date of appointment of each of the employees and date of filing of
the writ petitions is also different.
16. We have heard on this issue. Before we may pass final orders,
it would be apposite to refer to the decision of the Apex Court in
the case of Shiv Dass (supra). While dealing with the issue of delay
and latches caused in filing the writ petitions challenging
termination orders, the Apex Court has held thus:
"10. In the case of pension the cause of action actually
continues from month to month. That, however, cannot be a
ground to overlook delay in filing the petition. It would
depend upon the fact of each case. If petition is filed beyond
a reasonable period say three years normally the Court
would reject the same or restrict the relief which could be
granted to a reasonable period of about three years. The
High Court did not examine whether on merit appellant had
a case. If on merits it would have found that there was no
scope for interference, it would have dismissed the writ
petition on that score alone."
17. Thereafter, in the case of Tarsem Singh (supra), where the
issue pertains to the claim of pension, the Apex Court has held
thus:
"5. To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation
(where remedy is sought by an application to the
Administrative Tribunal). One of the exceptions to the said
rule is cases relating to a continuing wrong. Where a service
related claim is based on a continuing wrong, relief can be
granted even if there is a long delay in seeking remedy, with
reference to the date on which the continuing wrong
commenced, if such continuing wrong creates a continuing
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source of injury. But there is an exception to the exception.
If the grievance is in respect of any order or administrative
decision which related to or affected several others also,
and if the re-opening of the issue would affect the settled
rights of third parties, then the claim will not be entertained.
For example, if the issue relates to payment or re-fixation of
pay or pension, relief may be granted in spite of delay as it
does not affect the rights of third parties. But if the claim
involved issues relating to seniority or promotion etc.,
affecting others, delay would render the claim stale and
doctrine of laches/limitation will be applied. In so far as the
consequential relief of recovery of arrears for a past period,
the principles relating to recurring/successive wrongs will
apply. As a consequence, High Courts will restrict the
consequential relief relating to arrears normally to a period
of three years prior to the date of filing of the writ petition."
18. The aforementioned both the judgements are considered by
the Supreme Court in the case of Rushibhai Jagdishchandra
Pathak vs. Bhavnagar Municipal Corporation, JT 2022 (5) S.C.
470. It is held thus:
"12 In Tarsem Singh (supra), the delay of 16 years in
approaching the courts affected the consequential claim for
arrears and thus, this Court set aside the direction to pay
arrears for 16 years with interest. The Court restricted "the
relief relating to arrears to only three years before the date
of writ petition, or from the date of demand to date of writ
petition, whichever was lesser". Further, the grant of
interest on arrears was also denied.
13 The aforesaid ratio in Tarsem Singh (supra) has been
followed by this Court in State of Madhya Pradesh and
Others v. Yogendra Shrivastava, (2010) 12 SCC 538 and
Asger Ibrahim Amin v. Life Insurance Corporation of India.,
(2016) 13 SCC 797
14 In the facts of the present case, it is accepted that the
respondent-Corporation had accepted the interpretation
rendered by the High Court of Gujarat to the Scheme
whereby the appellants, on financial upgradation, would be
entitled to the higher grade pay-scale of the next
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promotional post, which is Rs.5,000-8,000/- in the present
case. As noted above, the impugned judgment of the Division
Bench accepts the said position and grants the appellants
the said pay-scale but restricts the benefit from the date of
the judgment of the Single Judge in the Writ Petitions filed
by the appellants, that is, with effect from 31st July 2018.
The Division Bench should not have taken the date of the
decision/judgment of the Single Judge for grant of the said
benefit in view of the decision and ratio in Tarsem Singh
(supra) which has been followed in several other decisions.
That apart, the date of the decision of the Single Judge is a
fortuitous circumstance. Only the date of filing of the writ
petition is relevant while examining the question of delay
and laches or limitation. The appellants would, in
consonance with the case law referred to above, be entitled
to the arrears for three years before the date of filing of the
Writ Petition."
19. The Apex Court has held that the claim which is related to
service benefits, one of the exceptions to the said rule of delay and
latches relating to a continuing wrong. It is held that where a
service-related claim is based on a continuing wrong, relief can be
granted even if there is a long delay in seeking remedy, with
reference to the date on which the continuing wrong commenced, if
such continuing wrong creates a continuing source of injury. But
there is exception to the exception. Ultimately, it is held that the
High Courts will restrict consequential relief relating to arrears
normally to a period of 3 years prior to the date of filing of the writ
petition. The Supreme court in case of Rushibhai Jagdishchandra
Pathak (supra) has held that the High Court should not have taken
the date of decision / judgement of the learned Single Judge for
grant of benefits in view of the decision and ration in Tarsem
Singh (supra), and further it is clarified that "only the date of
filing of the writ petition is relevant while examining the question
of delay and latches or limitation, and the arrears are to be
confined for three years before the date of filing of the writ
petition.".
20. Hence, the date of filing of the respective writ petitions
becomes very relevant while restricting the arrears for three years.
In the present group of appeals, the writ petitions have been filed
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after considerable delay and hence, the grant of actual arrears to
such writ petitioners is governed as per the law enunciated by the
Apex Court in the aforementioned decisions. The arrears are
required to be restricted to the period of 3 years prior to the date
of filing of each of the respective petitions. The reliance placed on
the decision of the Apex Court in the case of Lekh Ram (supra) will
not apply to the present facts, since the issue with regard to delay
in filing the writ petitions by the employee was neither raised nor
examined.
21. This directions will only be confined to those employees, who
have belatedly filed writ petitioners beyond three years
questioning the action of the State authorities in conferring the
regular pay-scale belatedly, and not from their initial date of
appointment.
22. Hence, the directions issued by the learned Single Judges in
the respective writ petitions is altered and all the employees shall
be entitled to the actual arrears from a period of 3 years prior to
the date of filing of the respective writ petitions. It is clarified that
since we have not disturbed the decision with regard to the
conferment of the regular pay-scale from the initial date of
appointment, the pay fixation and other benefits to all the
employees shall counted notionally for the intervening period.
9. Thus the issue raised in the present Letters Patent Appeal is no
more res integra. The appellant-original petitioner is entitled to the
original pay-scale from the date he was appointed on the post of
Junior Clerk. However, it appears that the writ petition has been
filed in the year 2014 seeking regular appointment from 26.07.2004.
10. At the outset, learned advocate Mr.Majmudar has submitted
that the similar order can be passed by this Court as passed in group
of appeals being Letters Patent Appeal No. 659 of 2024 and allied
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matters, as the present appeal is allowed in terms of the order dated
11.07.2024. The appellant will be entitled to the arrears for three
years from the date of filing of the writ petition i.e. the arrears are
restricted to the period of three years prior to date of filing of the
writ petition.
11. The Letter Patent Appeal is allowed to the aforesaid extent
and all consequential benefits which he would be entitled after re-
fixation of pay-scale It is goes without saying that once, the
appellant is treated as regular employee and conferred the regular
pay-scale, his seniority is also required to be fixed accordingly. The
impugned judgement and order passed by the learned Single Judge is
quashed and set aside. As a sequel, the connected Civil Application
also stands disposed of. Direct service is permitted.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
BEENA SHAH/31
