S A Upadhyay vs Gujarat Maritime Board on 16 February, 2026

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    Gujarat High Court

    S A Upadhyay vs Gujarat Maritime Board on 16 February, 2026

                                                                                                                       NEUTRAL CITATION
    
    
    
    
                             C/SCA/3640/2013                                        CAV JUDGMENT DATED: 16/02/2026
    
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                                                                                  Reserved On   : 03/02/2026
                                                                                  Pronounced On : 16/02/2026
    
                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                         R/SPECIAL CIVIL APPLICATION NO. 3640 of 2013
    
    
                          FOR APPROVAL AND SIGNATURE:
    
    
                          HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                          ==========================================================
    
                                      Approved for Reporting                        Yes            No
                                                                                     ✓
                          ==========================================================
                                                            S A UPADHYAY
                                                                 Versus
                                                       GUJARAT MARITIME BOARD
                          ==========================================================
                          Appearance:
                          MR. RISHABH ACHARYA WITH MS. HARSHAL N PANDYA (3141) for the
                          Petitioner(s) No. 1
                          MR. KANUBHAI M. PATEL, SR. ADVOCATE WITH MR. HAMESH C. NAIDU
                          WITH MS DHARMISHTA RAVAL(707) for the Respondent(s) No. 1
                          RULE SERVED for the Respondent(s) No. 1
                          ==========================================================
    
                             CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
    
    
                                                                 CAV JUDGMENT
    

    1. Heard Ms. Harshal N. Pandya, learned advocate

    with Mr. Rishabh Acharya, learned advocate for the

    SPONSORED

    petitioner and Mr. Kanubhai M. Patel, learned Senior

    Advocate with Ms. Dharmishta Raval, learned advocate

    with Mr. Hamesh C. Naidu, learned advocate for the

    respondent, at length.

    2. The present writ petition is filed under Articles 14,

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    16, and 226 of the Constitution of India, inter alia,

    seeking following reliefs:

    “7. The petitioner respectfully prays that, on the basis of the facts
    and circumstances as mentioned hereinabove and which may be
    urged at the time of hearing, the Honourable Court may be
    pleased to issue a writ of mandamus or any other appropriate
    writ, order or direction to the respondent-authorities and may be
    pleased to :-

    (A) direct the authorities of the respondent Board to grant the
    first higher grade scale of Rs. 5500-9000 to the petitioner from
    his due date, with all consequential benefits, and

    (B) further be pleased to direct the respondent authority to pay
    arrears to the petitioner flowing from the above prayer clause
    and also to fix pension and other retirement on that basis and
    pay arrears thereof with interest at the rate which the
    Honourable Court may consider as just and proper in the facts
    and circumstances of the case, and

    (C) award the cost of this petition, and

    (D) pending admission and final disposal of this petition, the
    Honourable Court may be pleased to direct the respondent
    authority to take appropriate decision for grant of first higher
    grade scale of Rs. 5500-9000 to the petitioner considering the
    judgment and order dated 25.3.2010 as confirmed by the
    Honourable the Division Bench vide judgment dated 26.4.2011
    and by the Honourable the Supreme Court vide order dated
    27.1.2012, and/or

    (E) grant any other relief or pass any other order which the
    Honourable Court may consider as just and proper in the facts
    and circumstances of the case.”

    3. BRIEF FACTS

    3.1 It is the case of the petitioner in this petition that

    he was appointed as a Khalasi with the respondent on

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    03.03.1976. Subsequently, he was promoted to the post of

    Operator in the year 1987 and later on promoted as a

    Tradesman in the pay scale of Rs. 1200 – 2040. The said

    pay scale was revised to Rs. 4000-6000 w.e.f. 01.01.1996.

    Upon completion of nine years of service to the post of

    Tradesman, the petitioner claimed higher grade of Rs.

    5500-9000 as prescribed for Foreman, i.e., the next

    promotional post.

    3.2 It appears that the petitioner took voluntary

    retirement on 30.04.2004 and after his retirement, the

    respondent has offered him higher pay scale of Rs. 4500-

    7000 and will be paid to him subject to he, submit

    undertaking / approval letter of accepting the said higher
    pay scale. The petitioner appears to have not accepted

    the said offer, but made representation to re-consider the

    said offer. The respondent has not accepted his

    representation and rejected it on 06.11.2007.

    3.3 At the same time, the respondent-board sought

    recovery from existing Tradesmen working with it as

    regards wrongly granted the higher pay scale to them,

    which was prescribed for the post of Foreman, i.e., Rs.

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    5500-9000, not immediate next promotional post from the

    post of Tradesman. Those aggrieved Tradesman

    approached this Court and eventually succeeded in their

    claim upto Hon’ble Apex Court. Thus, it has been held

    that next promotional post from the Tradesman would be

    the Foreman.

    3.4 In view of the aforesaid facts and developments

    taken place, the petitioner appears to have made a

    representation on 23.11.2010 to the respondent-board to

    grant him the similar higher pay scale of Rs. 5500-9000

    instead of Rs.4500-7000 as granted to other Tradesmen.

    Having not received any positive response, he preferred

    this petition.

    4. SUBMISSIONS ON BEHALF OF PETITIONER:

    4.1 Ms. Pandya, learned advocate would submit that the

    issue germane in the matter is no longer res integra as

    decided by the learned Single Judge, confirmed by the

    Hon’ble Division Bench and so also by the Hon’ble Apex

    Court, whereby it has been held that the Tradesman

    working with the respondent-board is entitled to the first

    higher pay scale of Rs. 5500-9000 instead of Rs.4500-

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    7000. It is submitted that after hearing the respondent

    at length, this Court in the aforesaid decisions has

    categorically arrived at the conclusion that the next

    available promotion from the post of Tradesman is

    Foreman and not Mistry. Accordingly, there was no

    mistake on the part of the respondent-board to grant the

    first higher pay scale of Rs. 5500-9000 to Tradesmen

    upon completion of nine years of service.

    4.2 Ms. Pandya, learned advocate, would further submit

    that the petitioner was insisted upon to file his

    undertaking / approval letter by the respondent to

    receive the benefit of first higher pay scale, i.e., Rs.

    4500-7000 instead of Rs. 5500-9000, in that view of the
    matter, the petitioner has not submitted such

    undertaking / approval letter. It is submitted that since

    all other similarly situated persons like petitioner were

    granted the benefit of first higher pay scale of Rs. 5500-

    9000, the action of the respondent in not granting such

    benefit amounts to violation of Articles 14 and 16 of the

    Constitution of India.

    4.3 Ms. Pandya, learned advocate would further submit

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    that the respondent has acted in an arbitrary manner,

    thereby violated Article 14 of the Constitution of India,

    inasmuch as, the petitioner could not have been

    compelled to receive lower higher pay scale than what

    was otherwise available to him. It is submitted that the

    respondent was under legal obligation to release the

    benefit of first higher pay scale as and when accrued to

    the petitioner, i.e., in the year 2002. It is further

    submitted that after taking VRS, the claim of the

    petitioner to receive the first higher pay scale was under

    active consideration with the head office of the

    respondent-board, which decided to grant it vide its

    intra-departmental communication dated 26.12.2005, but

    illegally insisted to submit undertaking / approval letter.

    4.4 Ms. Pandya, learned advocate, would further submit

    that there is no delay and laches on the part of the

    petitioner in preferring the present petition. It is

    submitted that the petitioner was all throughout engaged

    himself in making representation to the respondent and

    was under bona fide impression that upon final

    conclusion of the said litigation by the Hon’ble Apex

    Court giving quietus to the issue, the respondent-board

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    will release the benefit. It is further submitted that

    there is no mala fide intention on the part of the

    petitioner to prefer this petition in the year 2013; rather

    it is a continuous cause of action, whereby the claim of

    the petitioner may not be defeated on the ground of

    delay and laches. It is further submitted that no

    prejudice would be caused to the respondent as by

    granting the relief as prayed in this petition, no third-

    party right would be prejudiced.

    4.5 Ms. Pandya, learned advocate, would further submit

    that post-VRS, when the respondent agreed to grant

    higher pay scale, albeit, Rs. 4500-7000 instead of 5500-

    9000, at this stage the respondent cannot be allowed to
    submit that upon taking VRS, no relief can be granted

    to the petitioner as regards the higher pay scale.

    4.6 Making the above submissions, learned advocate for

    the petitioner would request this Court to allow the

    present writ petition.

    4.7 To buttress her arguments, she would rely on the

    following judgments:

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    (i) Sanjay Kumar Upadhyay Vs. State of
    Jharkhan reported in AIR 2026 SC 153: 2025 INSC
    1445.

    (ii) Mohanbhai Dudabhai Vadhiyari Vs. Gujarat
    Maritime Board
    reported in 2024 (1) GLR 476.

    (iii) State of Uttar Pradesh Vs. Arvind Kumar
    Srivastava
    reported in 2015 (1) SCC 347.

    (iii) Ashwin N. Acharya Vs. Gujarat Maritime Board

    Through Chief Executive Officer rendered in Special
    Civil Application No. 7076 of 2013 dated 25.10.2018 .

    (iv) Gujarat Maritime Board Through Chief
    Executive Officer Vs. Ashwin N. Acharya
    rendered
    in Letters Patent Appeal No. 1521 of 2018 dated

    21.10.2020.

    (v) Vipulkumar Atmaram Parekh vs. State of
    Gujarat reported in 2009 (5) GLR 3914.

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    5. SUBMISSIONS ON BEHALF OF RESPONDENT:-

    5.1 Per contra, Mr. Patel, learned Senior Advocate for
    the respondent-board, has strenuously opposed this

    petition on all possible grounds and would submit that

    this petition should not be entertained by this Court as

    barred by delay and laches. It is submitted that the

    claim of the petitioner to get higher pay scale was

    expressly denied by the respondent vide its

    communication dated 06.11.2007, whereas the present

    petition is filed in the year 2013. There is no

    explanation worth coming forward from the side of the

    petitioner for this huge delay. As per the settled position

    of law, this Court may not exercise its extraordinary

    jurisdiction under Article 226 in favour of an indolent
    petitioner, who slept over his rights for years together.

    5.2 Mr. Patel, learned Senior Advocate, would further

    submit that the petitioner was simply a fence-sitter, who

    awaited till the final outcome of the aforesaid litigation

    and, having come to know of it, woke up from deep

    slumber and filed this petition. This Court should not

    exercise its discretion in favour of the petitioner.

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    5.3 Mr. Patel, learned Senior Advocate, would further

    submit that upon accepting VRS in the year 2004, the

    petitioner is precluded to receive any benefit of a higher

    pay scale as claimed in this petition. It is submitted

    that once the petitioner accepted VRS, the relationship

    between the petitioner and the respondent as employee-

    employer stands extinguished. As per numerous decisions

    of the Hon’ble Apex Court, such type of petitioner cannot

    be allowed to claim any higher pay scale.

    5.4 Mr. Patel, learned Senior Advocate, would further

    submit that there is no error committed by the

    respondent whereby it offered higher pay scale of Rs.

    4500-7000 to the petitioner in the year 2006-07,
    inasmuch as, as per the Government Resolution dated

    14.08.1998, if there are more than one promotional posts

    in different scales of pay, the first higher pay scale shall

    be the pay of the lowest promotional post. Accordingly,

    the higher pay scale which was prevailing for the post of

    Mistry i.e. next lowest promotional post was offered to

    the petitioner being Rs. 4500-7000.

    5.5 Making the above submissions, Mr. Patel, learned

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    Senior Advocate would request this Court to dismiss the

    present writ petition.

    5.6 To buttress his arguments, he would rely upon the

    following judgments:

    (i) Chennai Metropolitan Water Supply and
    Sewerage Board Vs. T.T. Murali Babu
    reported in
    (2014) 4 SCC 108.

                                   (ii)    Karnataka             Power        Corpn.       Ltd.         Vs.        K.
                                   Thangappan             reported in (2006) 4 SCC 322.
    
    
    
    

    (iii) State Of Orissa & Anr Vs. Mamata Mohanty
    reported in (2011) 3 SCC 436.

    (iv) Mrinmoy Maity Vs. Chhanda Koley reported
    in 2024 AIR (SC) 2717.

    (v) Surjeet Singh Sahni Vs. State of Uttar
    Pradesh and Others
    reported in (2022) 15 SCC 536.

    (vi) A.K. Bindal Vs. Union of India reported in

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    (2003) 5 SCC 163.

    (vii) Officers & Supervisors of I.D.P.L. Vs.
    Chairman & M.D., I.D.P.L.
    reported in 2003 (6)
    SCC 490.

    6. No other and further submission has been made by

    the learned advocates for the respective parties.

    ANALYSIS:

    7. Having heard the learned advocates for the

    respective parties and after going through the pleadings

    of the parties, following would emerge:

    7.1 The petitioner was serving as a Tradesman from

    14.07.1993 until voluntary retirement from his service on

    30.04.2004.

    7.2 Upon completion of nine years of service at the post

    of Tradesman, the petitioner claimed higher pay scale of

    Rs. 5500-9000, which was prevailing pay scale for the

    post of Foreman, i.e., the next promotional post from the

    post of Tradesman.

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    7.3 The local office at Bhavnagar of the respondent

    recommended the claim of the petitioner to the head

    office, but the same was not approved; rather it was

    decided to offer higher pay scale of Rs. 4500-7000 vide

    head office communication dated 26.12.2005, which

    according to respondent a pay scale of the lowest

    promotional post, i.e., Mistry. It requires to be noted

    here that said decision was taken by the competent

    authority of the respondent post-retirement of the

    petitioner.

    7.4 While offering the said higher pay scale, there was

    a condition imposed by the respondent upon the
    petitioner to give his undertaking / approval letter to

    accept higher pay scale of Rs. 4500-7000 against his

    claim of pay scale of Rs. 5500-9000. The petitioner did

    not agree to accept such proposal; rather cited other

    instances to convince the respondent-board to release him

    higher pay scale of Rs. 5500-9000.

    7.5 On 29.10.2007, the competent authority of the

    respondent decided not to grant the claim of the

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    petitioner, rather advised the local office to grant higher

    pay scale of Rs. 4500-7000 as per the Government

    Resolution dated 14.08.1998. Accordingly, petitioner was

    communicated the aforesaid decision by local office vide

    its communication dated 06.11.2007.

    7.6 The respondent-board had also sought a recovery

    from other Tradesmen who, according to the respondent,

    were granted the wrong benefit of higher pay scale of

    Rs. 5500-9000 instead of Rs. 4500-7000. Those Tradesmen

    had approached this Court in the year 2008 and on

    merits, convinced this Court that stance of the

    respondent is wrong and the correct applicable higher

    pay scale is Rs. 5500-9000, and not Rs. 4500-7000, as
    decided by the respondent.

    7.7 Finally, when the Apex Court dismissed the

    petitions of the respondent, subsequently, the petitioner

    submitted his representation to the respondent, but had

    not got any response, thereby approached this Court on

    28.03.2013 by way of this petition.

    8. As such, the issue germane in the matter as

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    regards the appropriate higher pay scale to be given to

    Tradesman working with respondent, is squarely covered

    by the decision of the Co-ordinate Bench of this Court

    dated 25.03.2010 passed in Special Civil Application No.

    11923 of 2008 and allied matters, which was confirmed

    by the Division Bench of this Court vide its oral

    judgment dated 26.04.2011 passed in Letters Patent

    Appeal No. 1774 of 2010, wherein it has been

    categorically held that next promotional post of

    Tradesman would be “Foreman”, therefore, the

    respondent-board did not commit any mistake in granting

    the higher pay scale prescribed for the post of Foreman

    to the Tradesmen. It would be apt to refer the pertinent

    observation of the Division Bench of this Court in the
    said matter, which read thus:

    “8. …The main emphasis of the learned Senior Counsel is that
    in case where there is no promotional post, the first higher grade
    pay scale would be higher grade pay scale corresponding to its
    existing pay scale as specified in the schedule annexed to this
    Government Resolution. On the strength of the first proviso,
    learned senior counsel has urged that the Government Resolution
    dated 5.7.1991 prescribes that for existing scale of Rs.1200-2040,
    the higher grade pay scale as per the schedule would be Rs.1400-
    2600. Similar provisions were made in Government Resolution
    dated 16.8.1994 and 14.8.1998. This argument of the learned
    senior counsel is based on the assumption that from the post of
    Tradesman, a person is to be promoted on the post of Mistry and
    Mistry is to be promoted on the post of Foreman. There is a
    fallacy in the argument of the learned counsel for the appellant.
    The pay scale of Tradesman and Mistry being the same since
    the inception of Rules 1975 and the post of Mistry and

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    Tradesman were interchangeable and transferrable from one
    post to other. At no port in Gujarat, the post of Mistry was
    sanctioned by the Head Office of the Board nor there is any
    material on record to prove the sanctioned set up of the post of
    Mistry for any port. Therefore, in such situation, the next
    promotional post of Tradesman would be Foreman. Paragraph

    (iii) and its first proviso and the schedule of the Government
    Resolution dated 5.7.91, and Government Resolutions dated
    16.8.1994 and 14.8.1998 would not be applicable to the facts of
    the case. We have already held that the post of Mistry was not in
    existence under the Board, the next promotional post of
    Tradesman was Foreman.

    9. From the facts of this case, it is clear that the appellants had
    given higher grade pay scale of Foreman to the respondents
    which was next promotional post of Tradesman after completion
    of nine years of service. The benefit was granted by the appellant
    from the date each employee completed nine years service. There
    was no audit objection and the approval to the grant of higher
    grade pay scale was approved by the superior officers and the
    authorities of the Head Office of the Board. The employees were
    offered scheme of voluntary retirement in the year 2004 and they
    have accepted voluntary retirement scheme and accordingly their
    pay scale was re-fixed and their pension was also fixed and large
    number of employees are drawing pension and some of them are
    still in service. After 17-18 years, the appellants are estopped
    from challenging that wrong pay scale was given to the
    respondents under a mistake. Moreover, we have held that the
    next promotional post of Tradesman was Foreman, therefore,
    we are of the firm opinion that the Board did not commit any
    mistake in granting higher grade pay scale and post of Foreman
    to the respondents.”

    (emphasis supplied)

    8.1 The aforesaid aspect of the matter cannot be

    disputed by the respondent-board. In view of the above,

    Mr. Patel, learned Senior Advocate, during the course of

    argument, is unable to countenance the stance of the

    respondent in offering Rs. 4500-7000 to the petitioner. In

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    view of the aforesaid decision of this Court, not

    disturbed by the Hon’ble Apex Court, the petitioner was

    entitled to receive higher pay scale of Rs. 5500-9000,

    instead Rs. 4500-7000, as already offered by the

    respondent-board.

    8.2 Yet, Mr. Patel, learned Senior Advocate for the

    respondent, has resisted to grant the benefit as claimed

    in this petition; firstly, on the ground of delay and

    laches and, secondly, that since petitioner has accepted

    VRS, he is not entitled to receive higher pay scale and,

    thirdly, that no error when the respondent offered said

    higher pay scale to petitioner, but the same was not

    accepted by the petitioner.

    9. Now, so far as delay and laches is concerned, there

    is no provision prescribed under the law to file petition

    under Article 226 of the Constitution of India within

    stipulated period of time. At the same time, the

    discretionary power available to this Court under Article

    226 of the Constitution of India requires to be exercised

    in a judicious manner. In a case where this Court finds

    the action and approach of the petitioner, who for no

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    reason, remained silent for years together and actually,

    woke up from deep slumber and complained of violation

    of his fundamental rights, in an appropriate case, this

    Court may not exercise its discretion in favour of such

    type of petitioners.

    9.1 Nonetheless, there is no absolute proposition of law

    laid down by the Hon’ble Apex Court in the cited

    decisions by Mr. Patel, learned Senior Advocate, that in

    all cases of delay and laches, this Court should dismiss

    the petition; rather, it would be apposite to refer the

    relevant observation of the Hon’ble Apex Court in the

    case of Tridip Kumar Dingal Vs. State of West Bengal

    reported in (2009) 1 SCC 768, which is also referred to
    in a recent past decision of the Hon’ble Apex Court in

    the case of Mrinmoy Maity (supra) [cited by Mr. Patel,

    learned Senior Advocate], wherein it was held thus:

    “11. For filing of a writ petition, there is no doubt that no fixed
    period of limitation is prescribed. However, when the
    extraordinary jurisdiction of the writ court is invoked, it has to
    be seen as to whether within a reasonable time same has been
    invoked and even submitting of memorials would not revive the
    dead cause of action or resurrect the cause of action which has
    had a natural death. In such circumstances on the ground of
    delay and laches alone, the appeal ought to be dismissed or the
    applicant ought to be non-suited. If it is found that the writ
    petitioner is guilty of delay and laches, the High Court ought to

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    dismiss the petition on that sole ground itself, inasmuch as the
    writ courts are not to indulge in permitting such indolent litigant
    to take advantage of his own wrong. It is true that there cannot
    be any waiver of fundamental right but while exercising
    discretionary jurisdiction under Article 226, the High Court will
    have to necessarily take into consideration the delay and laches
    on the part of the applicant in approaching a writ court.

    12. This Court in Tridip Kumar Dingal v. State of W.B. [Tridip
    Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2
    SCC (L&S) 119] has held to the following effect: (SCC p. 784,
    paras 56-58)

    “56. We are unable to uphold the contention. It is no
    doubt true that there can be no waiver of fundamental
    right. But while exercising discretionary jurisdiction
    under Articles 32, 226, 227 or 136 of the Constitution, this
    Court takes into account certain factors and one of such
    considerations is delay and laches on the part of the
    applicant in approaching a writ court. It is well settled
    that power to issue a writ is discretionary. One of the
    grounds for refusing reliefs under Article 32 or 226 of the
    Constitution is that the petitioner is guilty of delay and
    laches.

    57. If the petitioner wants to invoke jurisdiction of a writ
    court, he should come to the Court at the earliest
    reasonably possible opportunity. Inordinate delay in
    making the motion for a writ will indeed be a good ground
    for refusing to exercise such discretionary jurisdiction.
    The underlying object of this principle is not to encourage
    agitation of stale claims and exhume matters which have
    already been disposed of or settled or where the rights of
    third parties have accrued in the meantime (vide State of
    M.P. v. Bhailal Bhai [State of M.P.
    v. Bhailal Bhai, (1964)
    15 STC 450 : 1964 SCC OnLine SC 10 : (1964) 6 SCR
    261 : AIR 1964 SC 1006] , Moon Mills Ltd. v. Industrial
    Court [Moon Mills Ltd. v. Industrial Court, 1967 SCC
    OnLine SC 117 : AIR 1967 SC 1450] and Bhoop Singh v.
    Union of India [Bhoop Singh v. Union of India, (1992) 3
    SCC 136] ).
    This principle applies even in case of an
    infringement of fundamental right (vide Tilokchand
    Motichand v. H.B. Munshi [Tilokchand Motichand
    v. H.B.
    Munshi, (1969) 1 SCC 110 : (1970) 25 STC 289] , Durga

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    Prashad v. Controller of Imports and Exports [Durga
    Prashad v. Controller of Imports and Exports
    , (1969) 1
    SCC 185] and Rabindranath Bose v. Union of India
    [Rabindranath Bose v. Union of India, (1970) 1 SCC
    84] ).

    58. There is no upper limit and there is no lower limit as
    to when a person can approach a court. The question is
    one of discretion and has to be decided on the basis of
    facts before the court depending on and varying from
    case to case. It will depend upon what the breach of
    fundamental right and the remedy claimed are and when
    and how the delay arose.”

    (emphasis supplied)

    9.2 Thus, in view of the aforesaid pronouncement and

    considering the ratio of the aforesaid decisions of the

    Hon’ble Apex Court, it would depend upon the facts and

    circumstances of each case as well as breach of

    fundamental rights and the remedy claimed.

    10. In the present case, prior to and or post-retirement,

    the petitioner was pursuing his claim with the

    respondent, having come to know about the decision of

    learned Single Judge of this Court passed in aforesaid

    matter, made representation to the respondent on

    23.11.2010. Of course, till such time or thereafter, the

    petitioner had not decided to approach this Court,

    perhaps because of the issue was writ large and pending

    before the Division Bench of this Court and Hon’ble

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    Apex Court; a quietus was finally given to the issue

    when the Apex Court dismissed the respondent’s petition

    vide its order dated 27.01.2012.

    11. It is not in dispute that the petitioner is entitled to

    receive pension; in view of the aforesaid circumstances, if

    the claim of the petitioner would have been granted,

    whereby the higher pay scale of Rs. 5500-9000 would be

    considered, then as a matter of course, his pension

    would have been revised.

    11.1 It is settled position of law that in a case of

    continuing wrong, irrespective of delay, the claim of the

    petitioner can be entertained by this Court, albeit
    restricting to monetary benefits for three years prior to

    the filing of the writ petition. One cannot dispute that

    benefit of higher pay scale and pensionary benefits if not

    granted as per law, it amounts to continuing wrong as

    this benefit would have direct bearing on the salary and

    pension, as the case may be, available to the petitioner

    on monthly basis.

    11.2 At this stage, it would be apposite to refer to

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    and rely upon the ratio of the cited decision of the

    Hon’ble Apex Court in the case of Sanjay Kumar
    Upadhyay (supra), wherein held thus:

    “24. The next question is whether the writ petition filed by the
    Appellant in the year 2005 suffered from delay and laches, having
    been instituted approximately 13 years after his appointment in the
    years 1992. It is well-established that in matters involving pay scale
    parity based on removal of anomalies, the cause of action continues
    from month to month as long as the anomaly persists. Every month
    when the employee receives lesser pay than his similarly situated
    counterparts constitutes a fresh cause of action. In M.R. Gupta v.
    Union of India6
    , while adjudicating on the issue of whether claim of
    correct pay-fixation was barred by delay and limitation, this court
    observed as follows – “6. The Tribunal misdirected itself when it
    treated the appellant’s claim as “one time action” meaning thereby
    that it was not a continuing wrong based on a recurring cause of
    action. The claim to be paid the correct salary computed on the basis
    of proper pay fixation, is a right which subsists during the entire
    tenure of service and can be exercised at the time of each payment of
    the salary when the employee is entitled to salary computed correctly
    in accordance with the rules. This right of a government servant to be
    paid the correct salary throughout his tenure according to
    computation made in accordance with the rules, is akin to the right of
    redemption which is an incident of a subsisting mortgage and subsists
    so long as the mortgage itself subsists, unless the equity of
    redemption is extinguished. It is settled that the right of redemption is
    of this kind.
    (See Thota China Subba Rao v. Mattapalli Raju [AIR
    1950 FC 1 : 1949 FCR 484 : 50 Bom LR 181 : (1950) 1 MLJ
    752] ).”(emphasis supplied)

    25. In the present case, Appellant filed writ petition before High
    Court praying for issuance of an appropriate writ to the Respondent-
    Employer to grant him pay scale as genuine in place of anomaly in
    pay scale in parity with other similarly situated persons. Therefore,
    the claim having a continuous cause of action, the plea of limitation
    or laches cannot be sustained in this case.”

    (emphasis supplied)

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    11.3 It would also be fruitful to refer the decision

    of the Co-ordinate Bench of this Court [Hon’ble Mr.

    Justice N.V. Anjaria, his lordship then was] in the case

    of Mohanbhai Dudabhai Vadhiyari (supra), wherein held

    thus:

    “5.8 The denial of higher pay scale benefit to a government
    servant or an employee when he is entitled to under the
    conditions and provisions of the Scheme for grant of higher pay
    scale, is a recurring injury to the government servant. It is a
    continuing wrong committed by a employer.”

    (emphasis supplied)

    11.4 Additionally, it would also be apt to refer the

    decision of the Hon’ble Apex Court in the case of Union

    of India Vs. Tarsem Singh reported in (2008) 8 SCC

    648, whereby it observed and held thus:

    “4. The principles underlying continuing wrongs and
    recurring/successive wrongs have been applied to service law
    disputes. A “continuing wrong” refers to a single wrongful act
    which causes a continuing injury. “Recurring/successive
    wrongs” are those which occur periodically, each wrong giving
    rise to a distinct and separate cause of action. This Court in
    Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar
    Maharaj Sansthan
    [AIR 1959 SC 798] explained the concept of
    continuing wrong (in the context of Section 23 of the Limitation
    Act, 1908 corresponding to Section 22 of the Limitation Act,
    1963): (AIR p. 807, para 31)

    “31. … It is the very essence of a continuing wrong that it
    is an act which creates a continuing source of injury and
    renders the doer of the act responsible and liable for the
    continuance of the said injury. If the wrongful act causes
    an injury which is complete, there is no continuing wrong
    even though the damage resulting from the act may

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    continue. If, however, a wrongful act is of such a
    character that the injury caused by it itself continues, then
    the act constitutes a continuing wrong. In this connection,
    it is necessary to draw a distinction between the injury
    caused by the wrongful act and what may be described as
    the effect of the said injury.”

    7. 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. If the grievance is in respect of any order or
    administrative decision which related to or affected several
    others also, and if the reopening 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
    refixation 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. Insofar as the consequential
    relief of recovery of arrears for a past period is concerned, the
    principles relating to recurring/successive wrongs will apply. As
    a consequence, the 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.”

    (emphasis supplied)

    11.5 Further, it would be apt to refer the decision

    of the Hon’ble Apex Court in the case of Rushibhai

    Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation

    reported in (2022) 18 SCC 144, more particularly, Paras-

    8 to 10 and 14 are relevant, which read thus:

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    “8. The doctrine of delay and laches, or for that matter statutes
    of limitation, are considered to be statutes of repose and statutes
    of peace, though some contrary opinions have been expressed.
    [ See Nav Rattanmal v. State of Rajasthan, 1961 SCC OnLine SC
    321 : AIR 1961 SC 1704] The courts have expressed the view
    that the law of limitation rests on the foundations of greater
    public interest for three reasons, namely,

    (a) that long dormant claims have more of cruelty than
    justice in them;

    (b) that a defendant might have lost the evidence to
    disapprove a stale claim; and

    (c) that persons with good causes of action (who are able
    to enforce them) should pursue them with reasonable
    diligence. [State of Kerala v. V.R. Kalliyanikutty, (1999) 3
    SCC 657 relying on Halsbury’s Laws of England, 4th
    Edn., Vol. 28, Para 605; Halsbury’s Laws of England,
    Vol. 68 (2021), Para 1005.]

    Equally, change in de facto position or character, creation of
    third-party rights over a period of time, waiver, acquiescence,
    and need to ensure certitude in dealings, are equitable public
    policy considerations why period of limitation is prescribed by
    law. Law of limitation does not apply to writ petitions , albeit the
    discretion vested with a constitutional court is exercised with
    caution as delay and laches principle is applied with the aim to
    secure the quiet of the community, suppress fraud and perjury,
    quicken diligence, and prevent oppression. [ See Popat and
    Kotecha Property v. SBI Staff Assn.
    , (2005) 7 SCC 510]
    Therefore, some decisions and judgments do not look upon pleas
    of delay and laches with favour, especially and rightly in cases
    where the persons suffer from adeptness, or incapacity to
    approach the courts for relief. However, other decisions, while
    accepting the rules of limitation as well as delay and laches,
    have observed that such rules are not meant to destroy the rights
    of the parties but serve a larger public interest and are founded
    on public policy. There must be a lifespan during which a person
    must approach the court for their remedy. Otherwise, there
    would be unending uncertainty as to the rights and obligations of
    the parties.
    [ See N. Balakrishnan v. M. Krishnamurthy, (1998) 7
    SCC 123]

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    9. Referring to the principle of delay and laches, this Court, way
    back in Moon Mills Ltd. v. M.R. Meher [Moon Mills Ltd. v. M.R.
    Meher, 1967 SCC OnLine SC 117 : AIR 1967 SC 1450] , had
    referred to the view expressed by Sir Barnes Peacock in Lindsay
    Petroleum Company v. Prosper Armstrong Hurd [Lindsay
    Petroleum Company v. Prosper Armstrong Hurd, (1874) LR 5
    PC 221] , in the following words : (Lindsay Petroleum Company
    case [Lindsay Petroleum Company v. Prosper Armstrong Hurd,
    (1874) LR 5 PC 221] , PC pp. 239-40)

    “Now the doctrine of laches in Courts of Equity is not an
    arbitrary or a technical doctrine. Where it would be
    practically unjust to give a remedy, either because the
    party has, by his conduct, done that which might fairly be
    regarded as equivalent to a waiver of it, or where by his
    conduct and neglect he has, though perhaps not waiving
    that remedy, yet put the other party in a situation in which
    it would not be reasonable to place him if the remedy were
    afterwards to be asserted, in either of these cases, lapse of
    time and delay are most material. But in every case, if an
    argument against relief, which otherwise would be just, is
    founded upon mere delay, that delay of course not
    amounting to a bar by any statute of limitations, the
    validity of that defence must be tried upon principles
    substantially equitable. Two circumstances, always
    important in such cases, are, the length of the delay and
    the nature of the acts done during the interval, which
    might affect either party and cause a balance of justice or
    injustice in taking the one course or the other, so far as
    relates to the remedy.”

    10. At the same time, the law recognises a “continuing” cause
    of action which may give rise to a “recurring” cause of action
    as in the case of salary or pension. This Court in M.R. Gupta v.
    Union of India [M.R. Gupta
    v. Union of India, (1995) 5 SCC
    628 : 1995 SCC (L&S) 1273] , has held that so long as the
    employee is in service, a fresh cause of action would arise every
    month when they are paid their salary on the basis of a wrong
    computation made contrary to the rules. If the employee’s claim
    is found to be correct on merits, they would be entitled to be
    paid according to the properly fixed pay scale in future and the
    question of limitation would arise for recovery of the arrears
    for the past period. The Court held that the arrears should be

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    calculated and paid as long as they have not become time-
    barred. The entire claim for the past period should not be
    rejected.

    14. In Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8
    SCC 648 : (2008) 2 SCC (L&S) 765], 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.”

    (emphasis supplied)

    12. Thus, in view of the aforesaid ratio decidendi
    stands as on date, I am of the view that though the

    petitioner has approached this Court after about six

    years from the denial of the higher pay scale of Rs.

    5500-9000 by the respondent, yet for the foregoing

    reasons, this Court is not inclined to accept the

    submissions of Mr. Patel, learned Senior Advocate for the

    respondent, that it should not entertain this petition on

    the ground of delay and laches. According to my view,

    as there is “continuous wrong” on the part of respondent

    in denying the legitimate claim of the petitioner, id est,

    appropriate higher pay scale, keeping in mind the said

    decisions, while giving final relief to the petitioner, right

    to receive monetary benefit can be restricted to three

    years prior to the filing of the petition.

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    13. So far as the second limb of argument of Mr. Patel,

    learned Senior Advocate, is concerned that upon

    acceptance of VRS by the petitioner in the year 2004, he

    would not entitle to receive the benefit of a higher pay

    scale. The stance of the respondent is not sustainable in

    law, inasmuch as it is hit by the principle of promissory

    estoppel. It is not in dispute between the parties that

    post-retirement (VRS), the competent authority of

    respondent had accepted that petitioner is entitled to

    receive a higher pay scale, therefore, it had offered

    higher pay scale of Rs.4500-7000, instead of Rs.5500-

    9000. Having offered such benefit to the petitioner

    knowing fully well that he had already taken VRS, later
    on, the respondent cannot be permitted to take

    indifferent stand that due to golden handshake by

    petitioner having taken VRS, his claim in regard to

    higher pay scale is foreclosed.

    14. The decisions cited by Mr. Patel, learned Senior

    Advocate, in support of this submission, i.e., A.K. Bindal

    (supra) and Officers & Supervisors of I.D.P.L. (supra) ,
    are not applicable to the facts of the present case,

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    inasmuch as the facts of those particular cases are

    different from the present one. Mr. Patel, learned Senior

    Advocate, is unable to point out from the said two cited

    decisions that the Hon’ble Apex Court had an occasion to

    consider the issue of promissory estoppel, which germane

    in the present case. It further appears that the case

    before the Hon’ble Apex Court was not in regard to

    granting of higher pay scale to an employee, who has

    taken VRS, but it appears to be of revised pay scale

    post-VRS. In light of the said facts, the act of the

    respondent to offer a higher pay scale to the petitioner

    post his voluntary retirement definitely binds the

    respondent. According to my view, the respondent is

    estopped in law to deny the benefit of higher pay scale
    merely because the petitioner has taken VRS in the year

    2004.

    15. It would also be apt to refer to the decision of the

    Co-ordinate Bench of this Court in the case of Ashwin

    N. Acharya (supra), wherein also in a similar factual
    situation, the petitioner of that petition though taken

    VRS on 30.04.2004 and filed a petition in the year 2013

    seeking higher pay scale of Rs. 5500-9000 like the

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    present petitioner, is granted relief in favour of that

    petitioner. True, the matter was carried by the

    respondent in appeal before the Division Bench, but the

    order dated 21.10.2010 passed by the Division Bench in

    Letters Patent Appeal No. 1521 of 2018 would indicate

    that the respondent is directed to pay the amount of

    enhanced pension as per the aforesaid order of the Co-

    ordinate Bench and further directed to deposit 50% of

    arrears amount with the Registry and permitted the

    petitioner of that petition to receive it upon filing an

    undertaking.

    16. It is trite that if State failed to give similar

    benefits to similarly situated persons, it amounts to
    violation of Article 14 of the Constitution of India. The

    respondent, being State under Article 12 of the

    Constitution of India, could not have offered different

    higher pay scale to the petitioner than paid to other

    similarly situated employees (Tradesman). Such impugned

    action of the respondent is ex facie arbitrary and

    violative of Article 14 of the Constitution of India,

    requires to be interfered with by this Court to protect

    the fundamental rights of the petitioner.

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    17. So far as last limb of argument of Mr. Patel,

    learned Senior Advocate that as per the Government

    Resolution dated 14.08.1998, if there are more than one

    promotional post in different scales of pay, the first

    higher pay scale shall be the pay of the lowest

    promotional post. According to the respondent, as such

    there is only one promotional post; but in view of the

    said decision of this Court, another avenue of promotion

    would be Foreman, thereby there are two promotional

    posts from the post of Khalasi, i.e., Mistry and Foreman,

    as the case may be. So, as per the stance of the

    respondent, in view of said resolution, the pay scale of

    Mistry, which is lower than the post of Foreman, would

    be applicable as first higher pay scale and accordingly,
    the same was offered to the petitioner. This argument is

    also not sustainable in law, inasmuch as the Division

    Bench of this Court has categorically held that the next

    promotional post of Tradesman would be Foreman and

    not Mistry.

    18. In view of the foregoing discussions and reasons, I

    am not at all impressed with any submissions of Mr.

    Patel, learned Senior Advocate for the respondent, thus,

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    it is hereby rejected.

    CONCLUSION:

    19. In view of the aforesaid, I am of the view that the

    present petition deserves to be allowed, which is hereby

    party allowed with the following order/directions:

    19.1 The respondent-board is hereby directed to

    grant higher pay scale of Rs. 5500-9000 to the petitioner

    from the date on which the petitioner is entitled to it.

    19.2 As observed hereinabove, the petitioner is not

    entitled to receive the arrears of such benefit from the

    date of entitlement till 28.03.2010; but the respondent is
    hereby directed to calculate and pay the arrears of such

    benefit, i.e., the revised enhanced pension from

    01.04.2010 till its payment.

    19.3 Accordingly, all consequential benefits flowing

    therefrom shall be paid to the petitioner w.e.f. 01.04.2010

    on or before 15.04.2026, failing which the petitioner is

    entitled to receive such benefit with 6% p.a. interest

    from the respondent till its realization.

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    19.4 It goes without saying that upon paying the

    aforesaid arrears amounts, the respondent shall pay

    revised pension regularly to the petitioner.

    20. In view of the foregoing conclusion, the present

    petition is partly allowed, to the aforesaid extent. Rule is

    made absolute to the aforesaid extent. No order as to

    costs.

    (MAULIK J.SHELAT,J)
    DIWAKAR SHUKLA

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