[Cites 14, Cited by 0]
Gujarat High Court
Dinesh Kanjibhai Rathava vs State Of Gujarat on 6 March, 2026
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Reserved On : 17/02/2026
Pronounced On : 06/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 208 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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DINESH KANJIBHAI RATHAVA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MS. NIDHI VYAS, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
[1] Heard Mr. P.H.Pathak, learned advocate for the petitioner as also
Ms. Nidhi Vyas, learned AGP for the respondents - State and its
authorities, at length.
[2] This Writ Petition is filed by the petitioner, under Articles 14 &
226 of the Constitution of India, seeking the following reliefs:-
"(A) The Hon'ble Court be pleased to issue a writ of mandamus and/or
certiorari or any other appropriate writ, order or direction, declaring the
conditions for forfeiting the earlier services in the order dated 17.11.2016
and 21.11.2016 as well as resolution dated 16.6.2015 (Annexure-A) which
provides for forfeiture of earlier services and not counting the seniority
from initial date of appointment as illegal, unjust, arbitrary and violative of
Articles 14 and 16 of the Constitution of India and be pleased to quash and
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set aside the same to that extent.
(B) The Hon'ble Court be pleased to declare that the respondents have
illegally wiped out the earlier services rendered by the petitioner as class-
III employee in light of the judgment of the Hon.ble Supreme Court and
hence, be pleased to direct the respondents to consider the seniority of the
petitioner from his initial date of appointment in class-III post and grant all
consequential benefits.
(C) The Hon'ble Court be pleased to declare that the respondents have
illegally put the petition of fixed salary basis and hence, be pleased to
direct the respondents to pay minimum pay scale with permissible
allowances to the petitioner which is available to class-IV employee.
(D) The Hon.ble Court be pleased to declare the resolution dated
16.6.2015 as bad in law qua the extend that provides fixed salary instead
of minimum pay scale and hence be pleased to direct the respondents to
grant similar benefits as granted by the Hon.ble Supreme Court in Brijesh
Vipinchandra Shah's case.
(E) Pending admission and final disposal of the petition, the Hon'ble Court
be pleased to direct the respondents to start paying regular salary to class-
IV employees, to the petitioner forthwith.
(F) Any other and further relief that this Hon'ble Court may deem fit and
proper in the interest of justice be granted."
FACTS OF THE CASE
[3] The father of the petitioner was serving as a Beat Guard under
respondent No.3 and while in service died in harness on 30.04.1994.
Upon the death of his father, the petitioner applied for compassionate
appointment, which was accepted. Accordingly, by letter / order dated
15.04.1996, the petitioner was appointed as a Clerk (Class-III) on ad-hoc
basis in the pay scale of Rs.950-1500 vide order dated 01.07.1996.
[3.1] Further, as a condition of service, the petitioner was required to
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pass the pre-service training examination within the prescribed chances.
Though the petitioner appeared in all available chances, he failed to clear
the said examination.
[3.2] Apprehending termination, the petitioner approached this Court by
filing Special Civil Application No.8638 of 1999, wherein interim relief
was granted. The said petition came to be disposed of on 04.02.2002,
with an observation that if the petitioner made an application for
absorption on a Class-IV post (where passing of pre-service examination
was not required), the authority may consider the same sympathetically.
After disposal of the aforesaid petition, the services of the petitioner came
to be terminated w.e.f. 11.09.2002. Thereafter, the petitioner made a
representation dated 20.04.2003 seeking absorption on a Class-IV post.
[3.3] In similar circumstances, another employee approached the
Hon'ble Supreme Court by filing Special Leave Petition No.25586 of
2010, wherein the Hon'ble Supreme Court directed appointment on a
Class-IV post, instead of Class-III post, and further held that seniority
shall be reckoned from the initial date of appointment. As per the
direction of the Hon'ble Supreme Court, several similarly situated
employees were granted appointment on Class-IV posts with continuity
of service. On the similar line, this Court has also passed several orders
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against the State.
[3.4] Pursuant thereto also, the Government issued a Resolution dated
16.06.2016, deciding to reinstate employees terminated for non-passing
of pre-service training examination on Class-IV posts. However, the
Resolution provided that the earlier service rendered would not be
counted for any purpose and that such appointment would be treated as a
fresh appointment. Moreover, such appointment of employee would be
on fixed salary for 5 years as per government policy.
[3.5] In pursuance of the said Resolution, the respondents issued orders
dated 17.11.2016 and 21.11.2016, appointing the petitioner on a Class-IV
post on fixed salary, while wiping out his service rendered from 1996 to
2002 and not granted continuity of service without any back wages as
was granted by the Hon'ble Supreme Court.
[3.6] Feeling aggrieved by the action of the respondents in forfeiting his
earlier service and treating the appointment as a fresh one, contrary to the
law laid down by the Hon'ble Supreme Court, the petitioner has
approached this Court under Article 226 of the Constitution of India,
challenging the Resolution dated 16.06.2016 and consequential orders as
illegal, arbitrary and violative of Articles 14 and 16 of the Constitution.
Hence, the present petition.
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SUBMISSIONS OF THE PETITIONER
[4] Mr. P.H.Pathak, learned advocate for the petitioner has made the
following submissions: -
[4.1] The Government Resolution dated 16.06.2015 issued by the
respondent is illegal, unjust, arbitrary, and violative of Articles 14 and 16
of the Constitution of India, insofar as it provides that the earlier services
rendered by an employee shall not be considered for any purpose and that
such employee shall be appointed on a fixed salary basis.
[4.2] The impugned order dated 17.11.2016 is also illegal and unjust, as
the same has been passed on the basis of a Resolution which is contrary
to the directions issued by the Hon'ble Supreme Court. The Hon'ble
Supreme Court, in the case of Brijesh Vipin Chandra Shah v. State of
Gujarat & Ors., rendered in Civil Appeal No. 735 of 2013 [2013 (2) SLJ
7], has categorically held that earlier services rendered by an employee on
a Class-III post are required to be considered for the purpose of seniority.
The said binding principle has been completely ignored by the
respondents while issuing the Resolution dated 16.06.2015 and the
consequential orders dated 17.11.2016 and 21.11.2016, thereby acted
arbitrarily.
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[4.3] Further, though the respondents have taken note of the aforesaid
judgment of the Hon'ble Supreme Court while issuing the said
Resolution, they have failed to implement the same in its true letter and
spirit, particularly with regard to continuity of service, seniority and
entitlement to regular pay scale, thereby rendering the action illegal.
[4.4] The respondents, without any justification, have completely wiped
out the earlier services rendered by the petitioner along with his accrued
seniority and have issued a fresh appointment order, which is directly
contrary to the directions issued by the Hon'ble Supreme Court as
referred to hereinabove.
[4.5] The respondents are not justified in denying the petitioner the
regular pay scale applicable to Class-IV employees. The Hon'ble
Supreme Court, in the case of State of Punjab v. Jagjit Singh, reported in
(2017) 1 SCC 148, has held that even part-time and daily-wage
employees are entitled to minimum pay scale. The case of the present
petitioner stands on a much better footing than those considered by the
Hon'ble Supreme Court, and therefore, the petitioner is entitled to the
regular pay scale along with all consequential benefits available to Class-
IV employees.
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[4.6] The action of the respondents in not considering the seniority of the
petitioner from the initial date of appointment and in denying him the
regular pay scale of a Class-IV employee, under the guise of the
Resolution dated 16.06.2015, amounts to a mala fide exercise of power
and is liable to be quashed and set aside.
[4.7] In support of his submissions, learned advocate for the petitioner
has placed reliance upon the following judgment of the Hon'ble Apex
Court:
Mohd. Ghani v. National Geophysical Research Institute,
reported in (1998) 8 SCC 458;
[4.8] It is pointed out that the issue germane to the matter as regards
appointment on fixed salary 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.
[4.9] Making the submissions, Mr. Pathak, learned advocate requests
this Court to allow the present petition.
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SUBMISSIONS OF THE RESPONDENTS
[5] Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for
the respondents has made the following submissions: -
[5.1] It is not in dispute that the petitioner was appointed on
compassionate basis as Clerk, Class-III in the office of the Deputy
Conservator of Forest, Social Forestry Division, Amreli, under
respondent No.3, on 15.06.1996, and that his services came to be
terminated vide letter dated 11.09.2002.
[5.2] At the relevant point of time, the petitioner himself executed an
undertaking on oath, whereby he categorically agreed that for the period
between 2002 and 2016, he would not claim any monetary benefits or
continuity of service. The said undertaking forms part of the record and is
annexed to the reply.
[5.3] The Government Resolution dated 16.06.2015 clearly provides that
where Class-III employees are appointed to Class-IV posts, the period
between their relieving from Class-III service and appointment to Class-
IV service shall not be considered for grant of any arrears. It is further
stipulated therein that previous salary, leave, pension, or any other service
benefits shall not be paid, and that such appointment shall be treated as a
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fresh appointment to Class-IV service, subject to execution of an
undertaking to that effect.
[5.4] The petitioner himself, by letter dated 30.07.2015, requested that
benefits strictly in accordance with the Government Resolution dated
16.06.2015 be extended to him while appointing him as a Class-IV
employee. In view of the same, the petitioner is not entitled to claim any
relief contrary to the said Resolution.
[5.5] It is settled law that compassionate appointment is not a regular
appointment but with a benevolent object to help the family in harness,
such appointment is made under the policy of the Government by
relaxing certain Rules. Since there was no policy of the State for granting
appointment to Class-IV in the case of non-fulfillment of Class-III
conditions at the relevant point of time, and there were many orders
passed by the Hon'ble Court, in that background, the State Government
issued the G.R. dated 16.06.2015. Thus, the impugned resolution is in
consonance with the spirit of the judgment passed by the Hon'ble Apex
Court. The State Government has rightly exercised its power and the
impugned policy is in consonance with the provisions of the Constitution
and this Court should not interfere with the policy matter of the State. The
petitioner is on one side taking benefit of the policy and on the other
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hand, seeking quashment of the very same policy without justifying his
own conduct as this petition is barred by delay and laches.
[5.6] Since the petitioner has agreed and accepted the terms and
conditions of undertaking while appointing him on Class-IV post, he is
not entitled for any benefits like seniority and arrears.
[5.7] In support of her submissions, learned AGP has placed reliance
upon the following judgments:
(i) State of Bihar v. Baliram Singh, reported in 2018 (14) SCALE
407;
(ii) State of Bihar v. Bihar Pensioners Samaj, reported in (2006) 5
SCC 65.
[5.8] Making the above submissions, Ms. Nidhi Vyas, learned AGP
requests this Court to dismiss the present writ petition.
[6] No other or further submissions are made by the learned advocates
appearing for the respective parties.
ISSUES FOR DETERMINATION
[7] Having heard the learned advocates for the respective parties and
upon perusal of their pleadings and documents, the issues germane to the
matter are twofold, which are as follows: -
(i) Whether Government Resolution dated 16.06.2015 in question is
arbitrary, discriminatory, unjust, unfair, unreasonable and violative
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of Article 14 of the Constitution of India insofar as it denies the
benefits of continuity of service and not protected the seniority as
treated the appointment of the employee concern as fresh
appointment?
(ii) Whether the respondent is justified in appointing the petitioner
on fixed salary for 5 years as his appointment is based upon
compassionate ground?
ANALYSIS
ISSUE NO.1
[8] There is no dispute between the parties that the petitioner was
appointed on compassionate ground due to untimely death of his father
serving as Beat Guard under respondent No.3, who died on 30.04.1994.
The petitioner was appointed on 15.04.1996 as Clerk, Class-III. Since the
petitioner could not clear the requisite computer examination, he was
dismissed from service on 11.09.2002. Prior thereto, petitioner had
approached this Court by way of Special Civil Application No.8368 of
1999 wherein this Court relegated the petitioner to respondent and
directed the respondent to consider the representation of the petitioner
whereby petitioner can be absorbed in service as Class-IV. Such request
though made by the petitioner but was not entertained by the respondent.
[8.1] It is also not in dispute between the parties that like petitioner,
other similarly situated appointees were also dismissed from their
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respective services by respondent, as they had not cleared the
examination. One of such appointees approached this Court and matter
went up to the Hon'ble Apex Court wherein the Hon'ble Apex Court not
interfered with the decision of the respondent terminating the services of
such appointees but directed the respondent to appoint the appellant
concerned on Class-IV post by granting continuity of service as well as
protected the seniority.
[9] It is apt to recapitulate the relevant observations made by the
Hon'ble Apex Court in the case of Brijesh Vipin Chandra Shah (supra),
which read thus:-
"8. We are of the considered opinion that the stand taken by the
respondents is unnecessarily harsh. It must be remembered that the
appellant was initially appointed on compassionate grounds as his
father had died while he was in service. Compassionate appointment
is made by relaxation of the normal service rules for providing
immediate financial assistance to the family of the deceased who dies
in harness. It is unfortunate that the appellant was unable to pass the
in-service examination so as to enable him to continue on a Class III
post. But that ought not to result in depriving him of service
altogether.
9. In view of the above, we allow this appeal and direct the
respondents to appoint the appellant on a Class IV post. The
appointment of the appellant on a Class IV post shall be from
the date he was initially appointed on Class III post. His
seniority shall be reckoned from the date of initial
appointment. However, the appellant shall not be entitled to any
back-wages since he has not worked, on any of the posts, after the
date of termination of his services."
(Emphasis Supplied)
[9.1] As can be seen from the aforesaid order, it has been clearly
directed by the Hon'ble Apex Court that appointment of the appellant
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concerned on Class-IV shall be from the date of his initial appointment on
Class-III post. On the similar line, the Division Bench of this Court vide
its order dated 16.09.2016 passed in LPA No.743 of 2016 also considered
the case of other similarly situated appointees and passed similar
direction to the State. Thus, in light of the aforesaid judgment/s and
order/s passed by the Hon'ble Apex Court and this Court, in number of
cases, then a conscious decision was taken by the State to appoint such
type of appointees on Class-IV post as their services were terminated on
the aforesaid ground. Therefore, the aforesaid Resolution dated
16.06.2015 came to be issued.
[10] The petitioner vide his letter dated 30.07.2015, citing the
aforesaid Resolution dated 16.06.2015, requested the respondent to
appoint him on the post of Class-IV. Accordingly, respondent, vide order
dated 21.11.2016, appointed the petitioner on Class-IV post. As per the
terms of the appointment, petitioner is not entitled to receive any back
wages from the date of his termination till reappointment on the post of
Class-IV. As per the aforesaid Resolution, the appointment to the post of
Class-IV is treated as fresh appointment. Further, as per aforesaid policy,
the petitioner would get fixed salary for first 5 years, thereby, petitioner is
not entitled to receive benefits of regular pay scale and other benefits
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from date of his reappointment. The petitioner appears to have submitted
undertaking confirming the aforesaid terms on 17.11.2016.
[10.1] Now, by way of this petition, the petitioner has challenged
the aforesaid service condition so far as treating his appointment as fresh
appointment to the post of Class-IV by not considering his previous
service rendered on Class-III post, on the ground that it is discriminatory,
arbitrary and violative of Articles 14 and 16 of the Constitution of India.
The petitioner has also challenged that respondent has committed
illegality by appointing him on a fixed salary for a period of five years as
per government rule. The respondent - State has opposed both these
stance of the petitioner, mainly on the ground that once petitioner agreed
and accepted the appointment as per terms stipulated therein, without any
demurrer and after submitting undertaking in this regard, later on,
petitioner is not permitted to challenge it on any ground. It is also
contended that for quite long period of time, petitioner was remained out
of service as terminated on 11.09.2002 and reinstated in service on
21.11.2016, then not entitled to claim continuity of service and protection
of his seniority. It is also contended that policy of the State cannot be
challenged by the petitioner as it is not violative of fundamental right of
petitioner. The case of the petitioner is not so similar with other
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petitioners who approached Hon'ble Apex Court or this Court as the case
may be.
[11] Before adverting to the issue germen to the matter, I would
first like to observe that the State is well within its power to frame
appropriate policy and this Court has very limited jurisdiction to interfere
with the policy matter / policy decision of the State. There is no cavil that
scope of judicial review to interfere with policy matter framed by the
State is very minimal. It is settled that when the policy of the State is not
found to be either violative of Article 14 of the Constitution of India or
any fundamental rights guaranteed under Part-III of the Constitution
infringed, this Court must not interfere with such policy of the State.
[11.1] At the same time, it is trite that every policy of the State must
be judged on the touchstone of fundamental rights guaranteed under the
Constitution of India, more particularly, Article 14 of the Constitution of
India. The policy of the State must not be arbitrary, discriminatory,
unjust, unfair and unreasonable. If policy is either discriminatory,
arbitrary, unequal, unreasonable or unfair, it violates Article 14 of the
Constitution of India. In such circumstances, this Court has power to
interfere with such policy framed by the State.
[12] Keeping in mind the said factors, I would like to appreciate
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the facts and analyze the submissions made by the respective learned
advocates.
[12.1] This Court needs to first examine the aforesaid policy dated
16.06.2015, upon which, the State has appointed the petitioner to the post
of Class-IV. A fair translation of the aforesaid G.R.dated 16.06.2015
reads thus:
"Regarding the absorption into
Class-IV of employees who
were appointed to Class-III
positions under the Scheme of
Appointment on
Compassionate grounds and
who failed to pass the
prescribed Post-Training
Examination within the
stipulated/grace attempts as
per the service rules.
Government of Gujarat
General Administration Department
Resolution No: RHM-102015-348-K
Secretariat, Gandhinagar
Date: 16/06/2015
Read:
(1) General Administration Department Resolution No:
BHRT-2197-K dated 10-03-2000.
(2) General Administration Department Resolution No:
BHRT-1201-910(2)-K dated 07-09-2002.
(3) General Administration Department Resolution No:
BHRT-1201-910(3)-K dated 07-09-2002.
(4) General Administration Department Resolution No.
BHRT-102004-385-K dated 15-06-2004.
(5) General Administration Department Resolution No:
BHRT-102004-385-K dated 30-09-2004.
(6) General Administration Department Resolution No:
RHM-102009-1651-K dated 05-07-2011.
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(7) General Administration Department Circular No:
BHRT/102004/1003/K dated 09-02-2005.
Preamble:
A revised Scheme for giving appointment on compassionate grounds
to the dependent family members of Class-III and Class-IV employees
who die during continued service was introduced by the State
Government qua the General Administration Department Resolution
dated 10-03-2000, read at Sr.No. (1) above, and amendments thereto
were made vide the resolutions read at Sr.Nos. (2), (3), (4), and (5)
above. However, subsequently, the said scheme of giving
appointment on compassionate grounds was discontinued, and in its
place, the State Government introduced and implemented a scheme
for paying lump-sum financial assistance vide the resolution dated
05-07-2011, which is currently prevalent.
2. As per the previous scheme of giving appointment on
compassionate grounds, in cases where employees appointed to
Class-III failed to pass the Post-Training Examination within the
prescribed/grace attempts as per the service rules, they were being
terminated. Regarding this, a dependent applicant Shri B.V. Shah
sought relief first before the Hon'ble High Court and later before the
Hon'ble Supreme Court. Special Leave to Appeal No. 25586/2010
was instituted in the case of Shri B.V. Shah Vs. Government of
Gujarat, which was allowed by the Hon'ble Supreme Court, pursuant
to which, the applicant preferred Civil Appeal No. 735/2013, wherein
orders were given, vide the Judgment dated 18/01/2013, to the effect
that Shri Shah was to be given appointment on a Class-IV post with
effect from the date when he reported on the Class-III post.
Accordingly, he has been appointed on a Class-IV post as a "special
case" on the condition that no arrears would be payable for the
Class-IV position. Relying on the stated Judgment of the Hon'ble
Supreme Court, some of the cases were instituted before the Hon'ble
High Court, wherein, referring to the Judgment dated 18/01/2013 of
the Hon'ble Supreme Court, the Hon'ble High Court has pronounced
a number of Judgments to give appointments in Class-IV as 'special
cases' as per the principle laid therein and the State Government has
issued orders to give appointments on compassionate grounds in
Class-IV, as special cases, to the employees/candidates who could not
pass the Post-Training Examination within the prescribed/graced
attempts for Class-III posts.
The matter, of taking a policy decision regarding giving
appointments, as per the Judgment of the Hon'ble Supreme
Court, in Class-IV instead of terminating such employees who
were appointed to Class-III posts on compassionate grounds
and have not passed the Post-Training/Departmental
Examination as per rules, was under active consideration of
the Government.
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Resolution
3. It is hereby resolved with a humanitarian approach to ensure
that a question as to livelihood does not arise for the families of
employees who were appointed to Class-III posts under the Scheme
of Appointment on Compassionate Grounds and could not pass the
Post-Training Examination within the prescribed attempts as part of
their service conditions. Instead of terminating them, they are to be
re-appointed to Class-IV posts as a special case subject to the
following conditions:
(1) In such cases, salary and allowances shall not be paid
for the intervening period from the date of termination
from the Class-III post until the appointment to the
Class-IV post. Additionally, the previous service
shall not be eligible for salary, leave, pension, or
any other service-related purposes under any
circumstances or in any form. Seniority in Class-
IV shall be considered afresh from the date of
appointment to the Class-IV position. A written
undertaking in this regard shall be obtained from
the applicant.
(2) While issuing Class-IV Appointment Orders under this
resolution, a Department shall issue self-explanatory
orders covering all details of the case.
4. These orders shall apply equally to the dependent members
appointed on compassionate grounds of deceased employees of State
Government / Panchayat Services, as well as Grant-in-Aid
institutions. Upon this order coming into force, the instructions at
para 3(1) and (2) of the circular read above at Sr.No. (7) are hereby
revoked.
5. These orders are issued pursuant to the approval dated 14-05-
2015 received from the Finance Department on the file of even
number of this department.
By order and in the name of the Governor of Gujarat.
Sd/- (illegible)
(Devi Pandya)
Deputy Secretary,
General Administration Department,
Government of Gujarat. "
[12.2] It is discernible from the preamble of the aforesaid G.R. that
it was issued due to the order passed by the Hon'ble Apex Court and this
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Court in number of cases. Thus, the aforesaid G.R. came to be issued by
the State by placing reliance upon the said decisions of the Hon'ble Apex
Court and this Court, unlike an independent policy framed by the State
protecting the interest of compassionate appointees. It may be said that to
avoid more number of such decisions in other similarly situated
appointees, the State has consciously decided to accept said decisions in
form of its policy, i.e. Resolution dated 16.06.2015. One can easily see
that in the aforesaid Court's decisions, wherein it is clearly held that
action of the State terminating the service of compassionate appointees
served on Class-III post on the ground of not clearing requisite test, is
arbitrary and accordingly, State was directed to appoint those persons on
Class-IV post and their appointment on Class-IV shall be treated from the
date they were initially appointed on Class-III post. Even their seniority
was also protected by the Hon'ble Apex Court/this Court by stating that
their seniority shall be reckoned from the date of initial appointment. The
Courts have not granted back wages for the period they had not worked
for.
[12.3] So far as the case of the Petitioner is concern, he was also
initially appointed on compassionate ground, thereby, he is also similarly
situated appointees who approached the Hon'ble Apex Court and this
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Court against their similar nature of termination like the termination of
the present petitioner by the respondent - State. According to my view,
they all would fall in one class, i.e., compassionate appointees. Once the
petitioner is one of the members of a homogeneous class, the State must
not act differently by giving him different treatment than received by the
other members of the same class. It is true that due to intervention of
Hon'ble Apex Court and this Court, State required to appoint them on
Class-IV post by granting them continuity of service by protecting their
seniority. To avoid similar orders in future, State decided to formulate a
policy by way of issuing the aforesaid Resolution.
[12.4] It is well settled position of law that the classification must
be based on an intelligible differentia which distinguishes persons or
things that are grouped, from others left out of the group; and the
differentia must have a rational relationship to the object sought to be
achieved by the policy. The classification made by the State in the present
case by not granting continuity of service and also not protected seniority
of the petitioner like other appointees is not based on an intelligible
differentia, inasmuch as all such appointees would fall in one class but
treated differently, accordingly deserve the similar treatment.
Furthermore, there is no reasonable nexus between the classification and
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the object sought to be achieved.
[12.5] Since the State has consciously decided to offer appointment
to compassionate appointees whose services were terminated from Class-
III post, State requires to have granted similar benefits as granted to other
similarly situated persons, albeit due to order passed by the Hon'ble Apex
Court / this Court. Having not granted similar benefits to petitioner unlike
others, State has acted in arbitrary manner and that part of policy is
discriminatory in nature. There is no reason assigned by the State why it
took departure as not granted relief as was granted by the Hon'ble Apex
Court / this Court to similarly situated compassionate appointees, even
though the said policy/resolution is entirely rest upon the decisions of the
Hon'ble Apex Court / this Court. At least no good reason worth name
forthcoming in the reply filed by the State in the present case.
[12.6] At this stage, I would like to refer and to rely upon the
decision of the Hon'ble Apex Court in a case of Union of India Vs.
International Trading Company reported in (2003) 5 SCC 437 wherein
held thus:
"15. While the discretion to change the policy in exercise of
the executive power, when not trammelled by any statute or
rule is wide enough, what is imperative and implicit in terms
of Article 14 is that a change in policy must be made fairly
and should not give the impression that it was so done
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arbitrarily or by any ulterior criteria. The wide sweep of Article
14 and the requirement of every State action qualifying for its
validity on this touchstone irrespective of the field of activity
of the State is an accepted tenet. The basic requirement of
Article 14 is fairness in action by the State, and non-
arbitrariness in essence and substance is the
heartbeat of fair play. Actions are amenable, in the
panorama of judicial review only to the extent that the State
must act validly for a discernible reason, not whimsically for
any ulterior purpose. The meaning and true import and
concept of arbitrariness is more easily visualized than
precisely defined. A question whether the impugned action
is arbitrary or not is to be ultimately answered on the facts
and circumstances of a given case. A basic and obvious
test to apply in such cases is to see whether there is
any discernible principle emerging from the impugned
action and if so, does it really satisfy the test of
reasonableness.
16. Where a particular mode is prescribed for doing an act
and there is no impediment in adopting the procedure, the
deviation to act in a different manner which does not disclose
any discernible principle which is reasonable itself shall be
labelled as arbitrary. Every State action must be
informed by reason and it follows that an act
uninformed by reason is per se arbitrary."
(Emphasis supplied)
[12.7] As observed hereinabove and considering the ratio of said
decision, if the policy is found to be arbitrary, discriminatory,
unreasonable and unfair, then it is violative of Article 14 of the
Constitution of India. Since the aforesaid policy in question is apparently
discriminatory by not giving similar treatment / relief as was given to
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other similarly situated persons, albeit by the Courts, and no valid reasons
assigned for doing so as there is no rational in such classification, in that
view of the matter, the aforesaid policy can be held to be violative of
Article 14 of the Constitution of India.
[13] So far as the decisions of the Hon'ble Apex Court cited by Ms.
Vyas, learned AGP is concerned, none of the decisions are helpful to the
case of the respondent as not applicable to the facts germane to the
present matter. In the case of Baliram Singh (supra), the Hon'ble Apex
Court has categorically recorded that none of the original petitioners -
respondents before it, questioned the terms and conditions of
appointment; rather not challenged the policy under which they have been
appointed. Whereas in the present case, the petitioner herein has
questioned both. Since the Hon'ble Apex Court had not called upon to
decide legitimacy of the policy in the facts of that case, the Hon'ble Apex
Court has not entertained the plea of the petitioners-respondents before it.
Likewise, in the case of Bihar Pensioners Samaj (supra), it is discernible
that the policy questioned before the Hon'ble Apex Court was not found
to be either arbitrary or discriminatory, and having not found to be
violative of Article 14 of the Constitution of India, then it has not
interfered with the policy decision.
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[14] Once this Court finds that the aforesaid policy, insofar as it
denies the benefits of continuity of service and not protected the seniority
of the petitioner, is arbitrary, discriminatory, unjust, unfair, and
unreasonable, thus, it is held to be violative of Article 14 of the
Constitution of India. Consequently, irrespective of the terms of
appointment or any undertaking given by the petitioner while accepting
the appointment under the said policy, the same would not bind him, as
the petitioner is well within his rights to challenge it before this Court, as
the policy in question is arbitrary, discriminatory and unreasonable, thus,
violative of fundamental right of the petitioner guaranteed under Part-III
of the Constitution of India. It is trite 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].
[15] In view of the aforesaid, according to my view, respondent -
State is required to grant continuity of service to the petitioner when
appointed to the post of Class-IV by treating it from the date he was
initially appointed on Class-III post and also required to protect his
seniority from the date of his initial appointment. Issue No.1 answered
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accordingly.
ISSUE NO.2
[16] The petitioner was reappointed on the post of Class-IV on
21.11.2016, but for a period of first 5 years on a fixed salary as per the
existing government policy. Accordingly, the petitioner was not granted
any benefits of regular pay scale, bonus, LTC, leave encasement, etc. for
said period.
[17] This 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 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
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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,
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
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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 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
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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.
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
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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 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
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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
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
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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.
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
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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
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
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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,
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
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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 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
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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
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
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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
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-
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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)
[18] In view of the aforesaid position of law and binding decision
of the Hon'ble Division Bench of this Court, as referred by the
Coordinate Bench of this Court in the aforesaid decision, I am of the view
that respondent - State has committed gross illegality by appointing
petitioner on a fixed salary for a period of 5 years; rather the petitioner is
required to be appointed on the post of Class-IV on regular pay scale as
prescribed for that post and prevailing at the time of his reappointment,
i.e., on 21.11.2026.
[19] So far as the arguments canvassed by the learned AGP for
this issue is concerned, almost all the arguments raised before me have
been dealt with by the Coordinate bench of this Court in the case of
Jitendrakumar Ashwinbhai Brahmbhatt (supra) including of
delay/laches. Issue No.2 answered accordingly.
Conclusion
[20] In view of the foregoing observations, discussions and
reasons, it is hereby held that the aforesaid policy/resolution dated
16.06.2015 issued by the respondent - State is held to be arbitrary,
discriminatory, unjust, unfair, unreasonable and thus, it is violative of
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Article 14 of the Constitution of India, insofar as not granting the benefits
of continuity of service notionally with protection of seniority to the
employees concern - compassionate appointees, which were granted by
the Hon'ble Apex Court and this Court in the aforesaid decisions.
[20.1] Accordingly, the respondents are hereby directed to issue a
modified appointment order to the petitioner for the Class-IV post,
thereby granting him continuity of service notionally and protection of
seniority from the date of his initial appointment to the Class-III post, on
or before 31st March, 2026. Nonetheless, the petitioner is not entitled to
receive any back wages from the date of his termination till his
reappointment for the Class-IV post.
[20.2] The petitioner is entitled to receive regular pay scale on his
appointment to the post of Class-IV on 21.11.2016 with all consequential
benefits. Consequently, the difference of arrears of salary shall be
calculated and paid to the petitioner by the respondent, on or before 30 th
April, 2026.
[20.3] 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
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reappointment and would include, but not be restricted to fixing
appropriate seniority, fixation of pay and opening of GPF account (if
applicable) etc.
[20.4] It is hereby clarified that the petitioner will be treated as
being appointed on the regular pay scale from the date of his initial
appointment whereas period between 11.09.2002 and 21.11.2016, shall
be treated as notional for all purposes.
[20.5] The respondents shall comply with the aforesaid directions
within the stipulated time period, as aforesaid.
[21] 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.
Sd/-
(MAULIK J.SHELAT,J)
Lalji Desai
