[Cites 6, Cited by 0]

Gujarat High Court

Irfanali Gulamabbas Sunsara vs State Of Gujarat on 19 January, 2026

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/SPECIAL CIVIL APPLICATION NO. 7018 of 2017


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                       =============================================
                                   Approved for Reporting                     Yes           No
                                                                                             √
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                                              IRFANALI GULAMABBAS SUNSARA
                                                          Versus
                                                 STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR HIMANSU M PADHYA(1611) for the Petitioner(s) No. 1
                       MS FORUM SHAH, AGP for the Respondent(s) No. 1,2,3
                       MR SHASHIKANT S GADE(1706) for the Respondent(s) No. 4
                       =============================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                          Date : 19/01/2026
                                                          ORAL JUDGMENT

1. Rule returnable forthwith. Ms.Forum Shah, learned AGP waives service of notice of rule for respondents Nos. 1, 2 and

3. Mr.Shashikant Gade, learned advocate waives service of notice of rule for respondent No.4.

1.1 With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.

2. This petition is filed under Article 226 of the Constitution of India, seeking the following reliefs :

"(A) This Hon'ble Court may kindly be pleased to issue a writ of Mandamus or a writ in the nature of mandamus or any other

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appropriate writ, order or direction, holding and declaring that the appointment of the petitioner on compassionate ground shall not be governed by the policy of the State Government in force prior to the resolution dated 15th June 2004 with further direction to the respondents to issue modified appointment order in favour of the petitioner as per the policy for compassionate appointment in force prior to the resolution dated 15th June 2004.

(B) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction holding and declaring that the case of the petitioner is identical and similar to that of Shri Nilesh Muljibhai Patel and the direction given vide order dated 6th September 2013 passed by this Hon'ble Court in Special Civil Application No. 31015 of 2007 are squarely applicable in the case of the petitioner and the petitioner is entitled to similar treatment like that of Shri Nilesh Muljibhai Patel and therefore he is entitled to all consequential benefits in which the services of Shri Nilesh Muljibhai Patel have been regularized vide order dated 26th December 2013 at Annexure.E and order dated 28th January 2014 at Annexure.F above.

(C) Ex-parte ad-interim relief in terms of para (B) above may kindly be granted."

BRIEF FACTS OF THE CASE :

3. The father of the petitioner was working as a Superintendent with respondent No. 4 - school, who died in harness during the course of his service on 22.12.2002. The petitioner appears to have applied for compassionate appointment and the same was considered by the respondents; thereby, vide its order dated 17.09.2004, he was appointed as a Junior Clerk on a fixed pay of Rs.2,500/- per month for 5 years from the date of appointment.

3.1 The petitioner, having come to know about other similarly situated persons who were appointed on a compassionate ground, albeit on a fixed pay for 5 years and

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were given a regular pay scale as per orders passed by this Court, requested to respondents to grant a similar benefit to him. The petitioner appears to have filed a representation dated 01.09.2014 asking for a regular pay scale from the date of his appointment, followed by a legal notice dated 19.01.2017 issued to the respondent authority. Having not received any positive response from the respondents, he approached this Court by way of this petition.

SUBMISSIONS OF THE PETITIONER :

4. Mr. Himanshu Padhya, learned advocate for the petitioner, has submitted as follow:

4.1 The appointment of the petitioner on a compassionate ground on a fixed pay for 5 years is unjust, unreasonable, arbitrary and contrary to law; thereby, it requires to be quashed and set aside by this Court.

4.2 The respondents have wrongly relied upon the Government Resolution dated 15.06.2004 while granting compassionate appointment to the petitioner on fixed pay on 17.09.2004.

4.3 The petitioner was appointed on a compassionate ground and not on a regular selection. It is submitted that the father of the petitioner died in harness and he was on a regular pay scale; thereby, it was incumbent upon the respondents to appoint the petitioner on a regular pay scale.

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4.4 The aforesaid Government Resolution is not at all applicable to the case of the petitioner, inasmuch as, his appointment is not pursuant to the aforesaid resolution.

4.5 It is pointed out that the issue germane to the matter is squarely covered by various decisions of this Court, but he would bank upon the recently passed decision/order of a Coordinate Bench of this Court on 15.10.2025 in the case of Jitendrakumar Ashwinbhai Brahmbhatt vs. State of Gujarat and others, being Special Civil Application No. 14302 of 2025 and allied matters.

4.6 Making the above submissions, Mr.Padhya, learned advocate for the petitioner would urge this Court to allow the present petition.

SUBMISSIONS OF THE RESPONDENTS :

5. Per contra, Ms. Shah, learned AGP, has vehemently opposed this petition and submitted as follow:

5.1 This petition should not be entertained only on the ground that it is preferred after about more than 13 years from the date of appointment of the petitioner, therefore, on the ground of delay and laches, this petition is liable to be dismissed.

5.2 There is no illegality on the part of the respondents in appointing the petitioner on a fixed pay for 5 years, albeit on a

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compassionate ground, to the post of Junior Clerk in respondent No.4 - School.

5.3 As per the Government Resolution and policy of the State Government, for any appointment to be made, albeit on a compassionate ground or otherwise, for the first 5 years, the person concerned requires to be appointed on a fixed pay for 5 years. It is submitted that to observe financial prudence and to avoid any heavy burden upon the exchequer, such a policy was evolved by the State, which cannot be questioned by the petitioner after more than a decade of getting the appointment.

5.4 As per the Government Resolution dated 02.07.1999 issued by the State, if any new appointment shall be made in any grant-in-aid secondary and higher secondary school, such appointment must be on a fixed pay for 5 years. It is submitted that observing the resolution and policy of the State, the petitioner was appointed to the post of Junior Clerk on a fixed pay for 5 years.

5.5 Even if the petitioner is found eligible by this Court to receive a regular pay scale from the date of his appointment, nonetheless, having approached this Court after more than 13 years from the date of his appointment, as per the settled law laid down by the Honorable Apex Court in the case of Union of India & Ors. vs. Tarsem Singh - 2008 (8) SCC 648 and also, in the case of Rushibhai Jagdishbhai Pathak v.

Bhavnagar Municipal Corporation - (2022) 18 SCC 144,

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the entitlement to the differential amount can be restricted up to three years prior to filing of the present petition.

6. Mr.Gade, learned advocate for respondent No. 4, has adopted the arguments canvassed by Ms.Shah, learned AGP appearing for the respondent State.

7. Making the above submissions, learned advocates for the respondents have urged this Court to dismiss the present petition.

8. No other and further submissions have been advanced by learned advocates for the respective parties.

ANALYSIS :

9. Having heard the learned advocates for the respective parties and after perused the pleadings and documents made available on record, it appears that the petitioner was appointed to the post of Junior Clerk on 17.09.2004 by the respondents, albeit on a fixed pay of Rs.2,500/- per month for 5 years. It is an undisputed fact that the said appointment of the petitioner was due to the death of his father, who died in harness during the course of his service with respondent No.4

- School on 22.12.2002 was drawing regular pay scale.

10. The issue germane to the matter is squarely covered by the decision of a Coordinate Bench of this Court in the case of Jitendrakumar Ashwinbhai Brahmbhatt (supra), wherein, considering the similar facts in the issue, after considering the

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previous case laws and Government Resolutions, it was held thus :

"6. It would appear that the petitioners before this Court, had been appointed on compassionate basis in terms of Government Resolution dated 15.06.2004, which prescribed the appointments on fixed pay on Ad-hoc basis for a period of 5 years and upon the petitioners having satisfactorily completed the period prescribed, the petitioners were to be absorbed in either Class III or the Class IV posts, as the case may be. It is the case of the petitioners that the petitioners had been wrongly appointed on fixed pay on fixed term basis and whereas it is in this context that the persons identically situated to the petitioners, had approached this Court by preferring the writ petitions referred to hereinabove. It would appear that this Court, vide judgment dated 14.03.2024 having relied upon the decision of the Hon'ble Supreme Court as well as of this Court, had allowed the writ petitions directing the respondents to issue modified appointment orders to the petitioners, whereby the period from date of appointment of the petitioners would be treated as a regular pay-scale. This Court had further directed the respondents to pay to the petitioners all consequential benefits, which the petitioners would be entitled to upon the change in the date of the appointment orders, including arrears of benefits w.e.f. 01.01.2020. The respondents were directed to complete the exercise within a period of 4 months from the date of the order.

7. It would appear that the State as well as some of the District Panchayats had preferred Letters Patent Appeal against the judgment of this Court vide Letters Patent Appeal No.659 of 2024 and allied matters and whereas the Hon'ble Division Bench vide common oral order dated 11.07.2024 had inter alia modified the said decision to the extent that the arrears, which those petitioners would be entitled to, would be restricted to a period of three years prior to date of filing of the writ petitions. The Hon'ble Division Bench has further clarified that the Hon'ble Division Bench had not disturbed the decision with regard to conferment of the regular pay- scale from initial date of appointment etc. as ordered by this Court.

8. Considering such a situation, more particularly since there is no dispute as regards the fact that the petitioners herein are identically situated to the petitioners of the group of petitions referred to hereinabove, the benefits as the petitioners of the above writ petitions had been conferred with, are required to be granted to the petitioners herein.

9. Having regard to the such a position, at the outset, this Court seeks to refer to the observations of this Court vide decision dated 14.03.2024 in Special Civil Application No. 10738 2020, paras 11.1,

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11.2, 11.3, 11.4, 11.5, 11.6, 11.7, 11.8 and 11.9 being relevant for the present purpose are reproduced hereinbelow for benefit.

"11.1. Considering the submissions, while it would appear that on substantive aspect, learned Coordinate Bench and Hon'ble Division Bench have passed orders in favour of the petitioners, yet it would appear that the State is seeking to contest the petitions before this Court mainly on two grounds i.e. on the ground of delay and on the ground that at the time when the applications for grant of compassionate appointment preferred by the present petitioners had been considered, a different policy of the State was in existence and, therefore, the State was well justified in coming to a conclusion of appointing the petitioners on fixed term basis.

11.2. In the considered opinion of this Court, the issue is no more open for the respondent State to take up, more particularly in view of the decision of the learned Coordinate Bench in Sachin Ishwarlal Chavda dated 18.4.2022 expressly rejecting the contention of delay raised by the respondents and whereas it appears that the said decision had been confirmed by the Hon'ble Division Bench of this Court and whereas Hon'ble Supreme Court had also declined to interfere in a petition, whereby the decision of the Hon'ble Division Bench had been challenged. Paragraphs 10, 11, 12, and 13 of the decision dated 18.4.2022, more particularly whereby the learned Coordinate Bench had rejected the contention of the respondent State that all the petitions being grossly delayed, being relevant for the present purpose are reproduced herein below for benefit :-

"10. Considering the submissions made by the learned advocates for the respective parties, it appears that Mr. Manharbhai Ramanbhai Naik, who was denied appointment on compassionate ground as a result of the ceiling of income limit prevalent at the time of his application, approached this Court when his case for appointment was rejected. Considering the policy as per the GR dated 10.3.2000 and 7.9.2002, the Court set aside the stand of the State Government in not considering the case of the petitioner for appointment on compassionate ground. The relevant portion of the order dated 7.10.2002 passed in Special Civil Application No.1579 of 2002 reads as under:

"4. At the hearing of the petition, the learned counsel for the petitioner relies on the Government Resolution dated 7-9-2002 laying down that the Government Resolution dated10-3- 2000 doing away with the

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income limit in matters of compassionate appointment shall be given effect from 1-1-1996.

5. In view of the aforesaid resolution, it is clear that in cases where deceased expired on or after 1-1-1996, the compassionate appointment cannot be refused on the ground of the income of the families exceeding the prescribed limit as no limit would now be applicable.

6. In view of the statement being made by the learned counsel for the petitioner that the death of the father of the petitioner took place while holding office and on or after 1-1-1996 i.e. on 19- 6-1999, it is obvious that the present case will be governed by the Government Resolution dated 10-3-2000 read with the Government Resolution dated 7-9-2002."

11. Based on these directions, Mr. Manharbhai Ramanbhai Naik was appointed on compassionate ground by an order dated 23.7.1994 on fixed pay of Rs.2,500/-. That his appointment was on fixed pay similar to the onein case of the petitioners is evident from the modified order issued by the State on 12.6.2019. Reading the order of 12.6.2019 would indicate that the State Government considering the spirit of the order passed in Special Civil Application No.1579 of 2002 dated 7.10.2002 modified the order appointing that petitioner in fixed pay of Rs.2,500/- and backing his appointment as one in the regular scale of pay from his initial date of appointment and not after completion of five years.

12. The facts on hand in the present cases would indicate that the case of the petitioners is similar to that of the petitioner of Special Civil Application No.1579 of 2002. The petitioners in the cases as argued by Ms. Thakar who were appointed on 25.7.2004 and in the case of Ms. Harshal Pandya, the petitioner so far as SCA No.14953 of 2020 was appointed on 12.8.2004. Perusal of all these orders would indicate that the petitioners were appointed on compassionate ground on fixed pay of Rs.2,500/- as that of the petitioner of SCA No.1579 of 2002. It was on 12.7.2019 that petitioner Mr. Manharbhai Ramanbhai Naik for the benefit of being appointed on regular pay scale from his initial date of appointment and not on completion of five years and the order was so modified. It is based on these orders that the petitioners are promoted to approach this Court in the year 2019-2020 claiming similar benefits.

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13. The objection of delay on the part of the respondents therefore that having accepted that appointments in 2004, the petitions are delayed, is an objection which is misconceived."

11.3. The decision of the learned Coordinate Bench had been affirmed by the Hon'ble Division Bench vide decision dated 5.9.2022 in LPA No.855 of 2022 and allied cases. A perusal of the said decision reveals that challenge to the judgment of the learned Single Judge was on the ground of the original petitioners having approached the Court after a substantial delay which, aspect according to the appellants, had not been appreciated by the learned Coordinate Bench. The Hon'ble Division Bench having not countenanced the submissions of the appellant had rejected the LPA. Paragraphs No.3, 4, 5 and 11 of the said decision being relevant for the present purpose are reproduced herein below for benefit :-

"3. The only ground raised and emphasis put on by the appellant is delay and laches on the part of the respondent employee seeking similar reliefs, and that too, by relying upon the order dated 12.06.2019 passed by the Panchayat Department, State of Gujarat in connection with similarly situated employee, namely, Manharkumar Ramanlal Nayak.

4. The facts arise from the record are that the respondent employee herein, who are the original petitioners namely (1) Sachin Ishwarlal Chavda in Special Civil Application No. 14642 of 2019, who had been given order of appointment on 25.07.2004 giving effect of appointment from 16.10.2004, (2) Prakashkumar Purshottamdas Mevada in Special Civil Application No. 14646 of 2019, who had been given order of appointment on 25.07.2004 giving effect of appointment from 15.10.2004, (3) Sanjaykumar Laxmanbhai Kalotara in Special Civil Application No. 14873 of 2019, who had been given order of appointment on 25.07.2004 giving effect of appointment from 14.10.2004, (4) Dineshkumar Gokaldas Parekh in Special Civil Application No. 14899 of 2019, who had been given order of appointment on 25.07.2004 giving effect of appointment from 01.11.2004, (5) Vijaykumar Kantibhai Patel in Special Civil Application No.6138 of 2020, who had been given order of appointment on 18.08.2004 giving effect of appointment from 16.11.2004, (6) Harjindersinh Ramsinh Rathod in Special Civil Application No. 6139 of 2020, who had been given order of appointment on

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11.11.2005 giving effect of appointment from 05.12.2005,(7) Bharatbhai Natvarbhai Darji in Special Civil Application No. 6142 of 2020, who had been given order of appointment on 15.02.2005 giving effect of appointment from 09.05.2005 and (8) Ajitsinh Badesinh Solanki in Special Civil Application No. 6140 of 2020, who had been given order of appointment on 19.04.2005 giving effect of appointment from 24.05.2005 were appointed on fixed pay. However, considering the policy applicable to the service conditions on compassionate grounds, the original petitioners requested that they should have been appointed on regular pay scale from the date of their initial appointment.

5. Since the case of the petitioners was not considered for regular pay scale from the date of their initial appointments and the case of another employee, namely, Manharkumar Ramanlal Nayak was considered giving effect of regular pay scale from the date of his initial appointment, writ petitions were filed in the year 2019 by the respondent employees herein.

6 to 10 xxx

11. As far as delay is concerned, it is true that the petitioners have approached after a long period; however, if the order dated 12.06.2019 passed by the concerned authority is perused, the said Manharkumar Ramanlal Nayak, who was appointed on compassionate ground on 23.07.2003 and was given all the benefits subsequent to petition filed by him before this Court in the year 2017, and thus, the State Government itself has condoned the delay with regard to claim put forward by said Manharkumar Ramanlal Nayak, and therefore, all the respondent employees in the appeals herein are also required to be given similar treatment. Learned Single Judge has also kept in mind for filing the petition at belated stage and has observed accordingly. Learned Single Judge has not granted any arrears from their initial date of appointment and has granted the benefits from 01.01.2010, and therefore, no interference is required in the order passed by learned Single Judge. Hence, present appeals stand dismissed."

11.4. In the considered opinion of this Court, it would appear that the present petitioners being identically situated to the petitioners in case of Special Civil Application No.14642 of

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2019 and allied matters, the observations of the Hon'ble Division Bench would apply with all force in the facts of the present petitions also.

11.5. In so far as the submissions on behalf of the respondent State that a different policy being in existence on the date when the applications were considered, also does not require any consideration, more particularly since in LPA No.287 of 2023 vide decision dated 3.10.2023, the Hon'ble Division Bench had dealt with the said controversy and whereas in view of the observations of the Hon'ble Division Bench being binding on this Court, the submissions by the State on the said count would not merit any consideration.

Paragraphs 4.2, 5, 5.1, 5.2 and 5.3 of the decision dated 3.10.2023 are quoted herein below for benefit :-

"4.2 On the other hand, learned advocate for the respondent would submit that on the basis of the decision of the Supreme Court in Ashish Awasthi (supra) in which it is held that for the appointment on compassionate ground, policy prevalent at the time of death of the deceased employee only to be considered and not the subsequent policy.

5. On a closer look of the facts and attendant aspects in this case, the controversy could be answered irrespective of whether the policy at the time of application or the policy prevalent at the time of considering the application, would apply. There is no need to weigh the said principles. There is no gainsaying that when the petitioners became eligible and they applied for compassionate appointment, the specific scheme or compassionate appointment was as per the Resolution dated 10.3.2000. The Resolution dated 15.6.2004 and other Resolutions reflected only general policy, whereby the government authorities used to offer fixed term appointment on fixed salary basis. Somehow in case of the petitioners the said policy was applied and the appointments to the petitioners were given of such kind and nature, treating them as compassionate appointment.

5.1 The policy reflected in Resolution dated 10.03.2000, in terms provided that the eligible kith and kin of the deceased employee would be provided appointment on compassionate ground. This appointment was contemplated to be substantive appointment and not a temporary one. It was a benefit to be conferred on permanent basis.

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5.2 Learned Single judge misdirected himself in making calling observations regarding the scheme of Resolution dated 10.03.2000, reproducing paragraph 15, "The claim of the petitioners is for appointment as per the prevailing policy under Government Resolution dated 10-3-2000. A perusal of the aforesaid Government Resolution indicates that it was for the purpose of providing benefit to the dependents of employees of Class-3 and Class-4 cadre upon his expiry while in service and amendment made therein. However, the entire Government Resolution does not mention anything with regards to making the appointment on a regular post on a regular pay scale and therefore in absence of any specific provision under the Resolution for making appointment against a pay scale, the Court will not presume such fact to be a policy of the State Government."

5.3 Appointing on compassionate basis is always pursuant to a particular specific policy. That policy in the case of the petitioners was one reflected in Resolution dated 10.3.2000. Furthermore, when a person is appointed on compassionate basis, the appointment is against specific post. A compassionate appointment in that way is substantive appointment under the four corners of the policy. The petitioners' case was required to be governed accordingly."

11.6. A perusal of the above paragraphs would clearly indicate that the Hon'ble Division Bench was of the considered opinion that the issue could be answered irrespective of the fact of the policy prevalent at the time of the death of the deceased employees, or the policy prevalent at the time of the applications being considered, being the relevant policy, being the contention of the State. It would appear that the Hon'ble Division Bench was of the clear opinion that the petitioners were entitled to compassionate appointment based upon the Resolution dated 10.3.2000 and whereas insofar as the later Resolution dated 15.6.2004 was concerned, the same was a general policy of the State and whereas it was held that while the appointment of the petitioners on fixed term for fixed salary may have been as per the policy dated 15.6.2004, but their appointment on compassionate was on the basis of Government Resolution dated 10.3.2000.

11.7. Thus, in the considered opinion of this Court, both the issues raised by the State having already been addressed by

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learned Coordinate Benches as well as Hon'ble Division Bench of this Court, unless the said view of the learned Coordinate Bench or of the Division are modified, the same would be binding on this Court, more particularly since on factual scenario there is no difference between the employees in the cases before the learned Coordinate Benches as well as the Hon'ble Division Bench and the present petitioners and whereas the issue being raised by the petitioners is also absolutely identical to the issue decided. In view of the above, the decisions of the Hon'ble Supreme Court relied upon by the learned AGP would not advance the cause of the State.

11.8. At this stage, at the request of learned AGP, since it is pointed out that in some cases, the petitioners have already approached this Court at the time of their appointment, challenging their fixed term appointments, which petitions had not been entertained at the relevant point of time. It is submitted that such persons may have again approached this Court, seeking reliefs based upon the reliefs granted to similarly situated persons and whereas it is submitted that such persons would not be entitled to such reliefs, since the original order whereby this petition was rejected has become final between the parties. It is submitted that since the petitioners, who ought to have been aggrieved by the said order, have chosen not to challenge the same at the relevant point of time, therefore, the said decision would be binding on such petitioners. To allay such apprehension of any employee coming before this Court with a second round of petition, learned Advocates for the petitioners have inter alia supplied details of each of the petitioners, more particularly whereby the learned Advocates have specifically stated, under instructions, that the present petitions, which are being disposed of by this Court vide the present judgement is the first round of petitions preferred by the petitioners before this Court for the very cause of action. Since the present petitions involve deciding a group of petitions, that while the statements supplied by the learned Advocates are accepted and taken on record, yet at the same time, liberty is reserved in favour of the State or the concerned competent authorities to approach this Court for modification of this order, in case it is found at a later stage that any of the petitioners has already approached this Court for the very self same reliefs and the same has already been rejected by this Court.

11.9. Having regard to the above discussion, all the petitions are allowed. The respondents are directed to issue modified appointment orders to the petitioners, whereby the period from the date of appointment of the petitioners would be treated as on regular pay scale. The consequential benefits,

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which the petitioners would be entitled to upon such placement, including benefit of arrears, etc shall be given to the petitioners w.e.f. 1.1.2020. The respondent shall complete the above exercise and disburse the arrears within four months from the date of receipt of this order."

10. Furthermore, the decision of the Hon'ble Division Bench in Letters Patent Appeal No.659 of 2024 dated 11.07.2024 is also required to be referred to. Paras 14, 15, 16, 17, 18, 19, 20, 21 and 22 being relevant for the present purpose are reproduced hereinbelow for benefit :

"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

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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 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

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by the High Court of Gujarat to the Scheme whereby the appellants, on financial upgradation, would be entitled to the higher grade payscale of the next 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 laches 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 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 decision. The arrears are required to be restricted to the period of 3 years prior to the date of filing of each of the

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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. These directions will only be confined to those employees, who have belatedly filed writ petitions 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."

(emphasis supplied)

11. In view of the aforesaid position of law and binding decision of the Division Bench of this Court as referred in it, I am also of the view that the respondents have wrongly appointed the petitioner on a fixed pay for 5 years; rather, the petitioner was required to be appointed to the post of Junior Clerk on the regular pay scale as prescribed for that post and prevailing at the time of his appointment on 17.09.2004. Having considered the aforesaid facts and law, I am of the view that the respondents have acted contrary to law thereby appointing the petitioner on a fixed pay for 5 years to the post of Junior Clerk and to that extent, his appointment order dated 17.09.2004 is liable to be modified.

12. So far as the arguments canvassed by the learned AGP is concerned, almost all the arguments raised here have been

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dealt with by the Coordinate bench of this Court in the case of Jitendrakumar Ashwinbhai Brahmbhatt (supra) including of delay/laches. It is trite law that when the impugned action of the respondent -State is found to be violative of the fundamental right of the petitioner, the doctrine of estoppel and/or waiver would not come to the rescue of the State. [See

- Basheshwar Nath v. Commr. Of Income-tax, Delhi, (1959) Supp (1) SCR 528 : AIR 1959 SC 149].

13. In any case, there is no reason to dismiss this petition on the ground of delay and laches on the part of the petitioner. Having so stated and observed hereinabove that the impugned action of the respondent is considered as a continuous wrong and in that view of the matter, as per the law laid down by the Honorable Apex Court in the case of Tarsem Singh (supra) and Rushibhai Jagdishbhai Pathak (supra), and so also of this Court in the case of Jitendrakumar Ashwinbhai Brahmbhatt (supra), the entitlement of the differential amount can be restricted up to 3 years prior to the filing of the present petition.

CONCLUSION :

14. In view of the aforesaid observations, discussion and the foregoing reasons, the impugned appointment order dated 17.09.2004 issued by respondent No.4 - School is required to be modified; thereby, the respondents are directed to issue a modified appointment order to the petitioner, inasmuch as, the date of appointment of the petitioner shall be treated as the date on which the petitioner had entered service on a

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regular pay scale. Nonetheless, consequential benefits, including the benefit of arrears, etc., to which the petitioner will be entitled upon such placement, would be given to the petitioner for a period of 3 years prior to the date of filing of the writ petition, i.e., from 07.04.2014.

14.1 It goes without saying that consequential benefits would include all benefits as would have been available to the petitioner as if the petitioner was appointed on a regular pay scale on the date of his original appointment and would include, but not be restricted to fixing appropriate seniority, fixation of pay and opening of GPF account (if applicable) etc.

14.2 It is clarified that the petitioner will be treated as being appointed on the regular pay scale from the date of his original appointment and whereas the period prior to 3 years from the date of filing of the writ petition shall be treated as notional for all purposes.

14.3 The respondents shall have to comply with the aforesaid directions within 4 months from the date of receipt of a copy of this order.

15. In view of the foregoing conclusions, the present petition is partly allowed. Rule is made absolute, to the aforesaid extent. There shall be no order as to costs.