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2024 DIGILAW 1936 (GUJ)

Kanubhai Khodabhai Patel v. State Of Gujarat

2024-10-17

A.S.SUPEHIA, GITA GOPI

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. The present appeal is directed against the judgment and order dated 08.01.2018 passed by the learned Single Judge rejecting the writ petition filed by the appellants seeking directions from the respondents to place them in regular pay-scale from their initial date of appointment and accordingly, count the aforesaid intervening period from the date of compassionate appointment till they are placed in regular pay-scale for the purpose of higher payscale, seniority, promotion, etc. 2. At the outset, learned advocate Mr. Majmudar has submitted that the issue is now squarely covered by the decision of the Coordinate Bench dated 11.07.2024 passed in Letters Patent Appeal No.659 of 2024 and allied matters. While placing reliance on the chart incorporated by the learned Single Judge in Paragraph No.5, it is submitted that all the appellants were appointed on compassionate appointment in the fixed pay, though their applications were made prior to the introduction of the scheme of fixed pay by the State Government, and hence, they are entitled to the regular pay-scale as they cannot be made to suffer on the ground of delay on the part of the State Government in issuing the appointment on compassionate ground. It is submitted that the learned Single Judge has rejected the writ petition on the ground of gross delay and also on the principle of estoppel. Learned advocate Mr. Majmudar has thus, submitted that since the issue is covered by the various decisions of the Division Bench, against which the Special Leave Petition is also rejected, the present appeal may be disposed of in terms of the order dated 11.07.2024 passed in Letters Patent Appeal No.659 of 2024 and allied matters. 3. It appears that the respondent authorities did not contest the petition on the ground of delay. However, the learned Single Judge has rejected the writ petition on the ground of delay and also while considering the judgment dated 18.09.2024 passed in Letters Patent Appeal No.825 of 2014 by the Division Bench while rejecting the writ petition. 4. 3. It appears that the respondent authorities did not contest the petition on the ground of delay. However, the learned Single Judge has rejected the writ petition on the ground of delay and also while considering the judgment dated 18.09.2024 passed in Letters Patent Appeal No.825 of 2014 by the Division Bench while rejecting the writ petition. 4. It is not in dispute that subsequently, a similar issue has been considered by the other Division Bench being the order dated 03.10.2023 passed in Letters Patent Appeal No.287 of 2023, wherein the employees similarly situated to the present appellants were ordered to be placed in the regular appointment in regular pay-scale from the initial date of appointment. The Division Bench, in the other order dated 16.10.2023 passed in Letters Patent Appeal No.1293 of 2023, has upheld the decision of the learned Single Judge granting arrears from 01.01.2020 to the similarly situated employees, who were appointed on compassionate ground initially on fixed pay and thereafter, on regular pay-scale. The Division Bench in the said order dated 03.10.2023 has placed reliance on the judgment of the Supreme Court in the case of Canara Bank v. M. Maheshkumar, (2015) 7 SCC 412 . 5. In the present case, the chart which is reproduced by the learned Single Judge in Paragraph No.5 is as under:- Sr. No. Name of the employee Date of death of father/ husband of the petitioner Date of application for appointment on compassionate ground Date of appointment order Date of joining Date of promotion 1 Kanubhai Khodabhai Patel 20.06.2000 19.8.2000 ARJ/ 102001/172.. CHH, dated 25.07.2004 18.10.2004 __.01.2015 2 Shri Dipakkumar Hirabhai Patel 20.07.2000 25.9.01 ARJ/ 102002/262.. CHH dated 25.07.2004 18.10.2004 _.11.2014 3 Shri Rakeshkumar Babulal Patel 16.7.2001 09/01/01 ARJ/ 102002/87.. CHH dated 25.07.2004 18.10.2004 07/11/14 4 Shri Ashwinkumar Govindbhai Patel 26.07.1993 ARJ/ 102003/41... CHH dated 25.07.2004 13.10.2004 07/11/14 5 Shri Rameshsinh Chamanji Rajput 02/01/99 16.08.2001 ARJ/ 102002/272.. CHH DT 04.10.2004 18.10.2004 07/11/14 6 Shri Lekhrajbhai Pachanbhai Parmar 06/11/99 01/12/99 ARJ/ 102001/251.. CHH dated 25.07.2004 18.10.2004 07/11/14 7 Shri Jayvadan Ganeshbhai Patel 08/02/00 24.02.2000 ARJ/ 102002/301.. CHH dated 25.07.2004 18.10.2004 07/11/14 8 8 Shri Sanjaykumar Dahyalal Patel 22.7.1997 01/01/01 ARJ/ 102003/100... CHH dated 21.09.2004 27.10.2004 07/11/14 9 Shri Suryakant Purushottambhai Patel 19.12.98 02/01/99 ARJ/ 102002/301.. CHH dated __.09.2004 18.10.2004 07/11/14 10 Shri Maheshkumar Hiralal Nayee 01/05/02 ARJ/ 102003/763.. CHH dated 03.09.2004 18.10.2004 07/11/14 11 Shri Rakeshkumar Khodabhai Patel 16.2.2001 08/03/01 ARJ/ 102001/1885.. CHH dated 25.07.2004 18.10.2004 07/11/14 8 8 Shri Sanjaykumar Dahyalal Patel 22.7.1997 01/01/01 ARJ/ 102003/100... CHH dated 21.09.2004 27.10.2004 07/11/14 9 Shri Suryakant Purushottambhai Patel 19.12.98 02/01/99 ARJ/ 102002/301.. CHH dated __.09.2004 18.10.2004 07/11/14 10 Shri Maheshkumar Hiralal Nayee 01/05/02 ARJ/ 102003/763.. CHH dated 03.09.2004 18.10.2004 07/11/14 11 Shri Rakeshkumar Khodabhai Patel 16.2.2001 08/03/01 ARJ/ 102001/1885.. CHH dated 25.07.2004 18.10.2004 07/11/14 6. Thus, the details of each of the appellants as per the chart hereinabove indicate that all the appellants had made the applications seeking compassionate appointment as per the policy dated 10.03.2000, which was prevailing at the relevant point of time. However, they were appointed on compassionate appointment in the fixed pay in view of the policy dated 15.06.2004. Thus, on an analogous issue, the Division Bench vide order dated 03.10.2023 passed in Letters Patent Appeal No.287 of 2023 by placing reliance on the judgment of the Supreme Court in the case of M. Maheshkumar (supra) has held thus:- “4. Learned advocate for the appellant submitted in all respect that learned single Judge has misdirected himself. He submitted that the policy of compassionate appointment was as per the Resolution dated 20.3.2000. It was that policy which has to be applied and under which the regular appointment was liable to be given to the petitioners, however doing injustice to them, the fixed pay appointment was given. 4.1 Learned advocate for the appellant relied on the decision of the Supreme Court in State of Madhya Pradesh Vs. Ashish Awasthi [ (2022) 2 SCC 157 ], to submit that the policy prevalent on the date of the application would be applied for considering the eligibility of giving appointments. The Division Bench of this Court in District Development Officer Vs. Sanjay Kumar Laxmanbhai Kalotra, which was Letters Patent Appeal No.844 of 2022, granted relief to the petitioners, by relying on Ashish Awasthi (supra), in the similar set of facts it was submitted. 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. 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. 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. 5.4 Learned Single Judge was further not justified in comprehending the scheme and purpose of the State Government whereby fixed term appointment on fixed pay was offered. It was not a policy to be applied in respect of compassionate appointment, but was a policy of offering employment on such terms for limited period, extracting from paragraph 17, "The contention of the petitioners by claiming the benefit under the Government Resolution dated 18-1-2017, by which as a matter of policy the Government employees employed in Class-3 and Class-4 are given the benefit of considering the period of 5 years, which they have served on fixed salary basis and consider such period for the purpose of seniority promotion, higher pay-scale and retirement benefits. In the opinion of the Court, the policy of the Government, it is clearly evident from the opening para of such Government Resolution, which clearly provides that the policy will apply to those appointed under the Government Resolution of 16-2-2006 and 1-8- 2006. None of the petitioners are appointed under the aforesaid two Government Resolutions and therefore, cannot claim any benefit under the Resolution dated 18-1-2017. This being clearly a policy decision of the State Government, the Court is not inclined to interfere in the facts of the present case." 5.5 It is to be further highlighted that it is also the policy of the respondent government to treat such appointees with regular benefits upon satisfactory completion of five years. Resolutions dated 16.2.2006 and 1.8.2006 were issued providing that appointment in Class III and Class IV would be given once the appointee of the fixed term has rendered satisfactory service to become entitled to promotion, seniority and higher pay-scale. In this view and the context, the petitioners are to be treated entitled to be considered eligible for regular appointment.” 7. Resolutions dated 16.2.2006 and 1.8.2006 were issued providing that appointment in Class III and Class IV would be given once the appointee of the fixed term has rendered satisfactory service to become entitled to promotion, seniority and higher pay-scale. In this view and the context, the petitioners are to be treated entitled to be considered eligible for regular appointment.” 7. The aforesaid judgment and order was considered by the Coordinate Bench in the judgment dated 11.07.2024 passed in Letters Patent Appeal No.659 of 2024 and allied matters when the issue was with regard to grant of arrears to the similarly situated employees to the present appellants who were appointed on compassionate ground on fixed pay and who had approached this Court by filing the writ petitions belatedly. In the said order, it is held as under:- “11. In these group of LPAs, learned Single Judges have issued directions to grant arrears w.e.f. 01.01.2020. It is noticed by us that the appointments of the petitioners - respondent employees have been made in the year of 2004- 2005. The writ petitioners have placed reliance on the order dated 07.10.2002 passed in Special Civil Application No.1579 of 2002 to substantiate their claim. An averment is made that the writ petitioners of that writ petition was appointed on fixed pay in 1994 on compassionate appointment, and after the observations are made by this Court in the judgement dated 07.10.2002, he is appointed on regular pay-scale. On a perusal of the order dated 07.10.2002, we do not find any such directions issued by the High Court. However, it appears that the said petitioner is thereafter conferred the regular pay-scale. In fact, the policy of appointing the dependent of the deceased employee on compassionate appointment on fixed pay is introduced by the State Government vide Government Resolution dated 15.06.2004. All the writ petitioners, thus were appointed on fixed pay in the year 2004-2005 on fixed pay, and have filed the writ petitions claiming regular payscale after a long delay in the years 2019- 2023. 12. The issue with regard to conferring the arrears either from 01.01.2020 or for 3 years from the date of filing of the writ petition, as declared by the Apex Court in the in the cases of Shiv Dass (supra) and Tarsemsingh (supra), was neither raised nor examined by the Coordinate Benches. 12. The issue with regard to conferring the arrears either from 01.01.2020 or for 3 years from the date of filing of the writ petition, as declared by the Apex Court in the in the cases of Shiv Dass (supra) and Tarsemsingh (supra), was neither raised nor examined by the Coordinate Benches. The Division Bench in the order dated 03.10.2023 passed in Letters Patent Appeal No.287 of 2023 has conferred the consequential benefits to the original petitioner - employees from the date of appointment, after directing the respondents to give them regular appointment in the regular pay-scale from the initial date of appointment. However, it is pertinent to note that subsequently, the Division Bench in the order dated 16.10.2023 passed in Letters Patent Appeal No.1293 of 2023 has upheld the decision of the learned Single Judge granting arrears from 01.01.2020. SLP (Civil) (Diary No).1024 of 2023 against judgement and order dated 05.09.2022 in LPA No.1050 of 2022 in SCA No.14642 of 2019 has been withdrawn by the District Development Officer on 24.05.2023, and SLP (Civil) Diary No.30685 of 2023 against the judgment and order dated 19.04.2023 in LPA No.464 of 2023 in SCA No.10916 of 2020 has been dismissed in limine. 13. When a specific query was raised to the learned advocates appearing for the respective parties regarding fixation of the date 01.01.2020 for restricting the date of arrears; it is pointed out that for the first time in the judgement and order dated 18.04.2022 passed in group of writ petitions being Special Civil Application No.14642 of 2019 and allied matters, the learned Single Judge has restricted arrears from 01.01.2020 since the writ petitions were filed in the year 2019, and no convincing explanation is tendered. It appears that thereafter, a view has been taken by learned Single Judges restricting the arrears from 01.01.2020. We did not also find any reasons assigned by the learned Single Judges for fixing the date of 01.01.2020 for grant of arrears. Fixing a particular cut-off date for grant of arrears or consequential benefits has to be on some rationale, which should be reflected in the orders conferring such benefits. 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. 14. The employees before us have contended that they are entitled to arrears from their initial date of appointment and not from 01.01.2020, whereas the State has prayed for restricting it for three years. 15. In our considered opinion, the date 01.01.2020 cannot be made applicable in all the cases uniformly in wake of the fact that the date of appointment of each of the employees and date of filing of the writ petitions is also different. 16. We have heard on this issue. Before we may pass final orders, it would be apposite to refer to the decision of the Apex Court in the case of Shiv Dass (supra). While dealing with the issue of delay and latches caused in filing the writ petitions challenging termination orders, the Apex Court has held thus: “10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.” 17. Thereafter, in the case of Tarsem Singh (supra), where the issue pertains to the claim of pension, the Apex Court has held thus: “5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. 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. 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 entitled to the arrears for three years before the date of filing of the Writ Petition.” 19. The Apex Court has held that the claim which is related to service benefits, one of the exceptions to the said rule of delay and latches relating to a continuing wrong. It is held that where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is exception to the exception. Ultimately, it is held that the High Courts will restrict consequential relief relating to arrears normally to a period of 3 years prior to the date of filing of the writ petition. 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 decisions. The arrears are required to be restricted to the period of 3 years prior to the date of filing of each of the respective petitions. The reliance placed on the decision of the Apex Court in the case of Lekh Ram (supra) will not apply to the present facts, since the issue with regard to delay in filing the writ petitions by the employee was neither raised nor examined. 21. This directions will only be confined to those employees, who have belatedly filed writ petitioners beyond three years questioning the action of the State authorities in conferring the regular pay-scale belatedly, and not from their initial date of appointment. 22. Hence, the directions issued by the learned Single Judges in the respective writ petitions is altered and all the employees shall be entitled to the actual arrears from a period of 3 years prior to the date of filing of the respective writ petitions. It is clarified that since we have not disturbed the decision with regard to the conferment of the regular pay-scale from the initial date of appointment, the pay fixation and other benefits to all the employees shall counted notionally for the intervening period.” 8. Thus, the issue is no more res integra. 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.” 8. Thus, the issue is no more res integra. The learned Single Judge fell in error in rejecting the writ petition filed by the appellants on the ground of delay when they were claiming regular pay-scale. As held by this Court that the denial of regular pay-scale would be a recurring cause of action. However, due to delay in filing the writ petition claiming regular pay-scale, the arrears were restricted for a period of 3 years prior to the date of filing of the writ petition, as directed by this Court in the order dated 11.07.2024. 9. It is not in dispute that all the appellants have been placed in regular pay-scale, after completion of 5 years of service. 10. Hence, the present appeal succeeds. The impugned judgment and order passed by the learned Single Judge is hereby quashed and set aside. The appellants shall be placed in the regular payscale from the initial date of appointment. The pay fixation and other benefits during the intervening period shall be counted notionally. The arrears are restricted to the period of 3 years prior to the date of filing of each of the respective petitions. It goes without saying that seniority of the respective appellants is to be counted from the date of their initial appointment after they are conferred the regular pay-scale. Necessary orders conferring the benefits, as observed by us hereinabove, shall be passed within a period of 3 months from the date of receipt of writ of the order of this Court. 11. Accordingly, the present appeal is allowed. As a sequel, the connected Civil Application also stands disposed of.