C.L. Soni, J.

This appeal under clause 15 of the Letters Patent is directed against the order dated 11.12.2008 passed by the learned Single Judge of this Court in the petition preferred by respondent No. 1 under Article 226 of the Constitution of India seeking direction to the appellants to appoint the respondent No. 1 on the post of peon in respondent No. 2 school (original respondent No. 4) on compassionate ground. The learned Single Judge has held that in view of the decision of this Court dated 4.7.1992 in Special Civil Application No. 5365 of 1992 and allied matters reported in the case of Satyendrakumar Parbatsinh Zala and Others Vs. The Secretary, Govt. of Gujarat, Education Department and Others, the application of the respondent No. 1 is required to be granted. The learned Single Judge, thus, directed the respondent No. 2 to appoint respondent No. 1 - original petitioner as peon and also to give him notional increments from 4.6.1992 i.e. from the date on which the petition was admitted and ad-interim relief therein was granted.

2. We have heard learned advocates for the parties. Learned A.G.P. Mr. Banaji for the appellants submitted that when the application of the original petitioner for compassionate appointment was decided, the petitioner was not found eligible for the appointment as per the policy prevailing on the date of taking the decision. Mr. Banaji submitted that the learned Single Judge relying on the earlier decision of this Court, directed that the application of the petitioner for compassionate appointment was required to be granted. Mr. Banaji submitted that it is the policy prevailing on the date of taking decision which is required to be applied and not the policy prevailing on the date of making of application. Mr. Banaji submitted that in any view of the matter, the learned Single Judge was not justified in directing to appoint the petitioner as peon and to give him notional increments from retrospective date in exercise of the powers under Article 226 of the Constitution of India. Mr. Banaji submitted that at the best, the learned Single Judge could have directed the appellants to reconsider the application of the petitioner in light of the prevailing policy. Mr. Banaji submitted that the policy for appointment on compassionate ground is given go bye and now, as per the existing policy dated 5.7.2011, the applications are being considered for grant of ex-gratia compensation in lieu of compassionate appointment. Mr. Banaji submitted that this Court in group of appeals being Letters Patent Appeal No. 2385 of 2009 and allied matters, has considered all earlier decisions on the issue and has taken a view that the application for compassionate appointment is required to be decided as per the policy prevailing on the date of taking the decision. Mr. Banaji thus urged to allow the appeal.

3. Learned Advocate Mr. B.P. Jasani appearing for respondent No. 1 original petitioner submitted that the learned Single Judge has rightly taken the view that the application of the respondent No. 1 was required to be considered as per the policy prevailing for compassionate appointment on the date when the petitioner made application. Mr. Jasani submitted that when the learned Single Judge decided the petition, the law declared by Hon'ble Supreme Court was to decide the application as per the policy prevailing on the date of making the application, learned Judge therefore committed no error in giving direction for appointment by impugned order. Mr. Jasani submitted that as per the judgment in the case of Satyendrakumar Parbatsinh Zala v. Secretary, Educational Department, Gandhinagar and Others (supra), the application of the petitioner was required to be considered under the policy for compassionate appointment. Mr. Jasani submitted that considering the earlier decision of this Court and the judgments of the Hon'ble Supreme Court, since the learned Single Judge was justified in issuing direction to appoint the p