Service Law: Tamil Nadu State and Subordinate Services Rules, 1955 – r.35(aa) – Seniority – Appellants were selected as Assistant Engineer – They were direct recruits of first batch selected in 1991-1992 and the second batch in 1993-1995 but got appointment in 1995 and 1998 – Candidates appointed on compassionate basis stood regularized from 1993 – Seniority assigned to compassionate appointees in the seniority list published on 1 January 2004 – Claim by appellants-direct recruits for seniority qua compassionate appointees – High Court, keeping the humanitarian consideration, declined to interfere and dismissed claim – On appeal, held: The compassionate appointments were made after the judgment in Nagpal’s case – In Nagpal’s case, compassionate appointments were restricted to the posts in Class III and Class IV with an object to give relief to the family of the deceased – The judgment in Nagpal’s case became the law and binding on the state government under Art.141 – Therefore, compassionate appointments were made de hors the said judgment by the state government under its executive fiat, prima facie, not sustainable in law – However, at the same time, the compassionate appointments and the regularisation were not challenged and the question was raised after long time and after seniority list came to be published – Moreover, there was no allegation of their ineligibility for post of Assistant Engineer – Thus, in the peculiar facts and circumstances, compassionate appointees are entitled to seniority as per the list for the reason that all compassionate appointments were made at different point of time, and if that is taken at its face value, there was no infirmity in the seniority – Prior to the joining of the appellants, first and second batch of compassionate appointments was regularized – The seniority being consequential was rightly assigned to the compassionate appointees – Taking into consideration the humanity aspect and the fact that compassionate appointees are in service for more than two decades, seniority list not disturbed and not interfered – Constitution of India – Art. 141. Dismissing the appeals, the Court
HELD: 1. This Court can take a judicial notice that appointments were earlier made in Class II posts which are under purview of the Commission and that was the reason for which this Court in Nagpal’s case came heavily while holding that compassionate appointment is not a vested right and held that such appointments shall be restricted to the posts in Class III and Class IV with an object to give relief to the family of the deceased from financial destitution who have suddenly lost their breadwinner and to help it to get over the emergency. The compassionate appointments made on the post of Assistant Engineer after the judgment of this Court in Nagpal’s case which became the law and was binding upon the State Governments under Article 141 of the constitution. If the appointments are made de hors the judgment of this Court by the State Government under its executive fiat, prima facie, are not sustainable in law and that indeed denies consequential seniority. [Paras 28, 31 and 35][272-E-F; 274-F; 275-H; 276-A]
Umesh Kumar Nagpal v. State of Haryana and Others [1994] 3 SCR 893 - referred to.
2. In the peculiar facts and circumstances, the question still emerges as to whether such compassionate appointees are entitled to claim their seniority in the cadre of Assistant Engineers as published on 1st January, 2004. The question appears to be affirmative for the reason that all compassionate appointments were made at different point of time. The first batch of compassionate appointees regardless of their nature of appointment stood regularized w.e.f. 16th July, 1993 and the second batch of compassionate appointees were treated to be regular from the date of their initial appointment and became entitled to claim consequential seniority in terms of Rule 35(aa) of the scheme of Rules, 1955 and if that is taken at its face value, there appears no infirmity in the seniority which has been assigned to the compassionate appointees published on 1st January, 2004. [Paras 39, 40][277-B-E]
3. The fact which has come on record and reflected from the seniority list dated 1st January, 2004 is that the appellants are direct recruits who joined service after their selection on the recommendations made by the Commission and prior to their becoming member of service, first and second batch of compassionate appointments stood regularized and that being so, the seniority being consequential has been rightly assigned to the compassionate appointees, vis-à-vis, direct recruits as reflected in the seniority list published on 1st January, 2004, which is in conformity with Rule 35(aa) of Rules 1955. [Para 41][277-EG]
4. Although this court deprecates the practice of State Government in making such compassionate appointments under Group ‘B’ post after the judgment of this Court in Nagpal’s case, still this Court refrain to disturb the seniority list which has been assigned to the respective compassionate appointees, vis-à-vis, direct recruits Assistant Engineers to whom consequential seniority has been assigned undisputedly under Rule 35(aa) of Rules, 1955 which may not call for interference, at this belated stage, after each of them is in service for more than two decades and indeed right is being conferred to each of them and an individual although a beneficiary but was not at fault at any given point of time either at the time of entry into service or thereafter. [Paras 46 and 47][279-B-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.