The legal principle established in the judgment is that the policy prevailing at the time of appointment governs the entitlement to pay scale, and the court may consider similar treatment given by the State Government in cases of delay in approaching the court.

ORDER :

VIPUL M. PANCHOLI, J.

1. This Appeal is filed under Clause 15 of the Letters Patent challenging the order dated 19.09.2022 rendered by the learned Single Judge of this Court in Special Civil Application No.10916 of 2020.

2. Heard Mr.H.S. Munshaw, learned advocate for the appellant-original respondent No.2, Mr. J.V. Japee, learned advocate for the respondent Nos.1 to 18 original petitioners and Mr.Ronak Raval, learned AGP for respondent No.9- State of Gujarat.

3. Mr. Munshaw, learned advocate for the appellant mainly submits that all the original petitioners were appointed on compassionate ground as per the policy of the State Government. It is submitted that the appointment of the petitioners were on fixed salary basis for a period of five years and that to ad-hoc basis. On completion of five years of ad-hoc services, the present appellant has passed order for giving regular pay scale to the original petitioners. It is submitted that as regular pay scale was not granted to the petitioners, they have preferred captioned petition in which, the original petitioners had prayed that the respondent authority be directed to pass orders for giving the regular pay scale applicable to the respective posts on which the petitioners came to be appointed as per the statement annexed at Annexure-A to the writ petition and the same be made applicable to the petitioners from the initial date of appointment. It is submitted that the learned Single Judge allowed the said petition and thereby directed the present appellant to issue modified orders of appointment and place the original petitioners in the regular pay scale from their initial date of appointment in the respective cadres. As far as arrears are concerned, the benefit shall be given to the original petitioners only with effect from 01.01.2020.

4. The learned advocate for the appellant submits that because of the said direction issued by the learned Single Judge, the present appeal has been filed. It is further submitted that the concerned petitioners were appointed on compassionate ground on fixed salary basis in the year 2004, for a period of five years. At the relevant point of time, they accepted the said appointment, and therefore, it is not open for the petitioners to claim regular pay scale from their initial date of appointment. Learned advocate for the appellant, therefore, submits that the impugned order passed by the learned Single Judge be quashed and set aside.

5. On the other hand, learned advocate Mr.J.V. Japee for the respondents-original petitioners submits that the learned Single Judge has allowed the petition mainly relying upon the order passed by the learned Single Judge in Special Civil Application No.14642 of 2019. It is further submitted that against the said order passed in the said petition, the State Government preferred Letters Patent Appeal No.855 of 2022 and the Division Bench of this Court vide order dated 05.09.2022, dismissed the appeal filed by the State Government. Learned advocate, therefore, urged that the issue involved in the present matter is covered by the aforesaid decision rendered by the Division Bench. It is further submitted that the learned Single Judge has not committed any error while issuing the impugned direction, and therefore, this appeal be dismissed.

6. Having heard the learned advocates for the respective parties and having gone through the material placed on record, it reveals that the original petitioners were appointed on compassionate ground in the year 2004 pursuant to the Government Resolution dated 15.06.2004. They were appointed for a period of five years for fix pay scale and as per the policy of the State Government. As contended by the learned advocate Mr.Munshaw that on completion of five years, their services will be considered as regular service. As observed hereinabove, the original petitioners filed the captioned petition claiming regular pay scale from their initial date of appointment and the learned Single Judge