The court established that delays in service-related claims do not bar relief if based on a continuing wrong, and benefits should be calculated from the date of filing the writ petition.

ORDER :

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present Letters Patent Appeals filed under Clause 15 of the Letters Patent, 1865 are directed against the judgment and order dated 08.12.2022 passed by the learned Single Judge in the captioned writ petitions, whereby the learned Single Judge has allowed the captioned writ petitions and it was held that all three petitioners (present respondents) are entitled for first higher pay scale from the year 1987 or 1988 from the date on which they have completed 9 years of service. Further, the appellant authorities are directed to re-fix the salary of the present respondents notionally till today (i.e. from the date of judgment) and to revise their pension based on the aforesaid calculation and to start paying them within a period of 12 weeks from the date of receipt of the writ of the impugned judgment.

2. The learned Assistant Government Pleader has submitted that in fact, all the writ petitioners have belatedly approached this Court by filing the writ petitions in the year 2018, that too after their retirement, challenging the alleged cancellation of higher pay-scale by the appellant – State authorities in the year 1994. He has submitted that only on this ground, the writ petitions were required to be rejected by the learned Single Judge however, the learned Single Judge fell in error in allowing the same. He has submitted that on the principle of acquiescence, no relief could have been granted to the respondents, who did not challenge the recovery of pay-scale, which was given effect in the year 1994. Thus, it is urged that the present Letters Patent Appeals may be allowed by setting aside the judgment and order passed by the learned Single Judge.

3. Learned Senior Advocate Mr.G.M.Joshi, appearing with the learned advocate Mr.Vyom H. Shah, for the respondents, while placing reliance on the judgment of the Supreme Court in the case of Union of India Vs. Tarsem Singh, 2008 (8) S.C. C. 648 as well as the recent judgment delivered by the Supreme Court in the case of Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation, JT 2022 (5) S.C. 470, has submitted that in fact, the denial of the actual pay-scale and conferring the less pay-scale to the respondents for all these years would be recurring cause of action and hence, as per the law enunciated by the Supreme Court in the said judgment, at the most, the benefits could have been conferred for a period of three years from the date of filing the writ petition however, he has submitted that in the present case, the entire benefits for such period of three years also foregone by the respondents. Thus, it is submitted that the learned Single Judge has directed the respondents to re-fix the salary on the basis of notional pay, which is appropriately done and hence, it is urged that the present Letters Patent Appeal may not be entertained.

4. We have heard the learned advocates appearing for the respective parties. We have also perused the judgment and order passed by the learned Single Judge.

5. The facts, as recorded by the learned Single Judge in the impugned judgment and order, are not in dispute. The respondents were appointed in the year 1978 / 1979 and they became entitled for first higher pay-scale in the year 1987 or 1988 in view of the Government Resolution dated 05.07.1991. It appears that in the year 1994, vide order dated 04.10.1994 the Commandant (Battalion Quarter Master), Dy. Superintendent of Police, S.R.P.F. Group No.2, Ahmedabad passed an order withdrawing the higher pay-scale by recording that since the respondents (original petitioners) did not pass any department promotional examination till 1991 and they did not reach the age of 45 years, as per the provisions of the Resolution dated 05.07.1991, the higher pay-scales, which are granted to them, are required to be cancelled and hence, the recovery was ordered.

6. It is also not in dispute that after their retirement, they have assailed such action of the