Gujarat High Court Holds State Resolution Arbitrary; Directs Continuity of Service and Seniority for Compassionate Appointee

A bench of Justice Maulik J. Shelat heard a writ petition under Articles 14 and 226 challenging the State Government Resolution dated 16.06.2015 and consequential appointment orders which had re‑appointed a terminated compassionate appointee to a Class‑IV post on a fixed salary while “wiping out” his earlier Class‑III service. The petitioner sought quashing of the Resolution and orders, counting of seniority from the initial appointment and grant of regular pay scale with consequential benefits.

The High Court allowed the petition in part, held that the State Resolution was arbitrary and violative of Article 14 insofar as it denied continuity of service and protection of seniority, and directed specific remedial steps. The Court noted earlier precedent including the Supreme Court’s decision in Brijesh Vipin Chandra Shah and applied established tests of arbitrariness and reasonable classification. The Court, in its reasoning, observed: "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." The Court also relied on the appellant‑side authority that “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.”

Background

The petitioner’s father, a Beat Guard, died in service in 1994 and the petitioner received a compassionate appointment as a Clerk (Class‑III) in 1996. He failed to clear the prescribed post‑training examination and his services were terminated with effect from 11.09.2002. Following litigation and a series of decisions by the High Court and the Supreme Court directing re‑appointment of similarly situated persons on Class‑IV posts with continuity and protected seniority (notably Brijesh Vipin Chandra Shah), the State issued Resolution No. RHM‑102015‑348‑K dated 16.06.2015. That Resolution provided for re‑appointment to Class‑IV as a special humanitarian measure but stipulated that earlier service would not be counted for any purpose, appointments would be treated as fresh, and the appointee would be paid a fixed salary for five years subject to an undertaking.

Acting on that Resolution, the Forest Department re‑appointed the petitioner to a Class‑IV post on fixed salary by orders dated 17.11.2016 and 21.11.2016 and obtained an undertaking from him. The petitioner challenged the policy and orders as arbitrary, discriminatory and violative of Articles 14 and 16, and sought counting of service and regular pay. The State defended the Resolution as a policy decision taken in the light of competing precedents and relied on the petitioner’s request for re‑appointment strictly under the Resolution and his executed undertaking.

The High Court reviewed applicable principles, held that classification created by the Resolution lacked an intelligible differentia and a reasonable nexus to the object sought, and found the impugned portions arbitrary. The Court rejected the State’s estoppel/waiver contention, observing that a policy violative of fundamental rights could be challenged notwithstanding undertakings. Applying binding coordinate‑bench and Division Bench precedents on fixed pay appointments, the Court held that the petitioner should be treated as having continuity of service notionally from his initial Class‑III appointment, with seniority protected, but without entitlement to back wages for the period he had not worked. The Court further directed that the petitioner would be paid the regular pay scale applicable to the Class‑IV post from the date of his reappointment and that arrears (difference in pay) be calculated and disbursed.

Disposition: The writ petition was partly allowed. The State was directed to issue a modified appointment order treating the petitioner as appointed to Class‑IV from his initial appointment date and to protect his seniority by 31 March 2026; to pay the calculated arrears by 30 April 2026; and to treat the period 11.09.2002 to 21.11.2016 as notional for all service purposes. The petitioner was held not entitled to back wages for the period he had not worked.

Case Details: Case No.: R/SPECIAL CIVIL APPLICATION NO. 208 of 2018 (C/SCA/208/2018) Case Title: DINESH KANJIBHAI RATHAVA Versus STATE OF GUJARAT & ORS. Appearances: For the Petitioner(s): Mr. P.H. Pathak, Advocate For the Respondent(s): Ms. Nidhi Vyas, Assistant Government Pleader