Supreme Court - Daily Orders
The Secretary To Government Department ... vs A. Kingston David on 11 December, 2021
Bench: D.Y. Chandrachud, A.S. Bopanna
CA 7655-56/2021
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 7655-7656 of 2021
(Arising out of SLP (C) Nos 15689-15690 of 2019)
The Secretary to Government, Department Appellants
of Co-operation, Food and Consumer Protection
and Others
Versus
A Kingston David Respondent
Judgment
Dr Dhananjaya Y Chandrachud J
1 The office has reported a delay of 750 days in filing the Special Leave
Petitions against the judgment and order of the High Court dated 8
December 2016. The delay has been explained on the ground that the
appellants had moved a review petition before the High Court. The review
petition was dismissed on 31 January 2019. The Special Leave Petitions were
filed on 28 March 2019. Hence, sufficient cause for condoning the delay has
been shown. The delay in filing the Special Leave Petitions is condoned.
2 Leave granted.
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2021.12.16
16:29:46 IST
Reason:
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3 These appeals arise from a judgment of a Division Bench at the Madurai
Bench of the Madras High Court dated 8 December 2016, and the judgment
dated 31 January 2019 in review.
4 The father of the respondent, who was working as a Senior Inspector in the
Animal Husbandry Department of the Government of Tamil Nadu, died in
harness on 29 March 2002. The respondent applied for employment on
compassionate grounds. According to the appellant, no direct recruitment
had taken place between 2001 to 2006; there were backlog vacancies and in
terms of GOMs No 154 (Personnel and Administrative Reforms Department)
dated 19 September 2006, only 25% of the estimated vacancies in the post
of Junior Assistant for a specific year can be filled up on compassionate
grounds. The post of Junior Assistant falls within the purview of the Tamil
Nadu Public Service Commission. It has been stated that under the terms of
the above government order, the post can be filled up only by following a
State level seniority from the list of candidates awaiting appointment on
compassionate grounds. The respondent was at serial number 49 of this list.
5 The qualification for the post of Junior Assistant is Secondary School Leaving
Certification. The qualification for the post of Record Clerks was passing the
8th standard. At the time of appointment, the respondent held a Bachelor’s
degree in Arts. On 27 March 2009, the respondent was informed that
appointments for the post of Junior Assistant would be issued based on
seniority. On 15 March 2010, he was requested to opt whether he would
willing to be appointed as a Record Clerk/Office Assistant under the Registrar
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of Cooperative Societies. As there was no vacancy in the post of Junior
Assistant, the respondent furnished an option letter dated 23 June 2010
accepting the post of Record Clerk with an undertaking not to claim the post
of Junior Assistant in the future. In view of his undertaking and option, he
joined as a Record Clerk in the office of the Joint Registrar of Cooperative
Societies, Sivagangai region on 19 January 2011.
6 The respondent instituted a writ petition under Article 226 of the
Constitution, seeking a revision of his appointment from the post of Record
Clerk to the post of Junior Assistant with effect from 19 January 2011, the
date of initial appointment and for subsequent promotions by considering the
service rendered in the cadre of Record Clerk. The respondent also sought
back wages and other monetary benefits. The petition was dismissed by a
Single Judge at the Madurai Bench of the High Court on the ground that
appointment on compassionate grounds is not a matter of right. In a writ
appeal, the Division Bench of the High Court has reversed the judgment of
the learned Single Judge.
7 The principal ground which has weighed with the Division Bench of the High
Court in reversing the judgment of the Single Judge is based on GO Ms No
1499, issued by the Labour and Employment (Q1) Department dated 3
August 1989. Paragraph 2 clause (iii) of the GO Ms which has been extracted
in the judgment of the High Court, reads as follows:
“(iii) The appointing authorities under no circumstances
should appoint a dependent to a lower post when the
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dependent possesses the qualifications required for the post
of junior Assistant/Typist on the ground of non availability of
vacancy in the office or department or the dependents not
willing to work in other departments. In such circumstances,
they should follow the existing procedure of approaching the
Collector of the District concerned for providing a suitable
vacancy, as suggested in G.O. Ms.No.1179, P & AR, dated
17.10.1979."
8 The Division Bench held that in terms of the above GO Ms, the authorities
ought to have followed the procedure of moving the competent authority for
sanctioning of a suitable vacancy in case of the unavailability of a vacancy in
the post of Junior Assistant/Typist. Hence, it came to the conclusion that the
appointment of the respondent as a Record Clerk instead of as a Junior
Assistant was due to the fault of the authorities. In the circumstances, the
writ appeal was disposed of by directing the appellants to revive the
appointment of the respondent to the post of Junior Assistant with effect from
the date of his original appointment to the post of Record Clerk, and to
provide subsequent promotions from the cadre of Junior Assistant by
considering the service rendered in the cadre of Record Clerk as service
rendered in the cadre of Junior Assistant. However, no back wages have been
granted on the ground that it was in pursuance of his option letter and
undertaking that the respondent was appointed as a Record Clerk.
9 Mr Amit Anand Tiwari, learned counsel appearing on behalf of the appellants
has urged two submissions : firstly, it has been submitted that GO Ms No
1499 dated 3 August 1989 will have no application in a situation such as a
present, where in view of the absence of suitable vacancy in the post of
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Junior Assistant, the candidate seeking compassionate appointment was
appointed on the post of Record Clerk at his request, on his letter of option
and on an undertaking that he would not claim the post of Junior Assistant in
the future. Secondly, it has been submitted that as a result of the directions
of the High Court, the respondent will steal a march over other candidates
who like him would have been appointed to the post of Record Clerk on their
request as well as candidates who did not furnish such an undertaking but
preferred to wait in their turn of seniority for appointment to the post of
Junior Assistant.
10 On the other hand, Mr S Nagamuthu, learned senior counsel appearing on
behalf of the respondent submitted that:
(i) The failure of the appellants to appoint the respondent to the post of
Junior Assistant arose because they did not follow the procedure which
was prescribed in GO Ms No 1499 dated 3 August 1989;
(ii) If the procedure which was envisaged in the above GO Ms was followed,
it would have been possible for the Collector to ascertain whether
vacancies were available in any other department;
(iii) The respondent has, in fact, suffered as a consequence since though his
father who was in the Animal Husbandry Department died on 29 March
2002, he was appointed only in January 2011; and
(iv) In any event, in 2019, the respondent has received promotion as a
Junior Assistant in the normal channel of promotion.
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11 There is no dispute about the fact that though the respondent was qualified
for the post of Junior Assistant. Since there was no vacancy in the post, the
respondent was given an option of either accepting the post of Record Clerk
or of waiting his turn in seniority on compassionate grounds until a vacancy
arose in the post of Junior Assistant. The State has indicated in its pleadings
that in terms of GO Ms No 154 (Personnel and Administrative Reforms
Department) dated 19 September 2006, only 25% of the estimated
vacancies in the post of Junior Assistant for a specified year can be filled up
on compassionate grounds. The respondent was ranked at serial number 49
in the seniority list for appointment. The decision of accepting the post of
Record Clerk was entirely at the option of the respondent. Having accepted
the post and being appointed on 19 January 2011 with an undertaking that
he would not claim the post of Junior Assistant, the respondent moved
proceedings under Article 226 of the Constitution seeking appointment from
the initial date as a Junior Assistant. The learned Single Judge was justified in
coming to the conclusion that such a course of action was not open to the
respondent, having accepted the post of Record Clerk. He was plainly
estopped from doing so and could not have been appointed retrospectively
to a post in which he had never worked. This is exactly what the Division
Bench has directed. The Division Bench interfered with the judgment of the
Single Judge purely on the basis of GO Ms No 1499, Labour and Employment
Department (Q1) dated 3 August 1989. Paragraph 2 clause (iii) which has
been extracted earlier, indicates that appointing authorities were directed
not to appoint a dependent to a lower post when a dependent possesses the
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qualifications required for Junior Assistant/Typist on the ground of non-
availability of vacancy or in the event that the dependent is not willing to
work in any other department. The above stipulation also states that the
Collector of the District should be approached for providing a suitable
vacancy as suggested in GO Ms No 1179 dated 17 October 1979. If at all, the
above stipulation would indicate that the Collector would have to be
approached for ascertaining whether any other suitable vacancy is available.
If no vacancy was available, the respondent could not have been appointed
at all.
12 In this backdrop, the respondent took a conscious decision to avail of a public
appointment on a compassionate basis by opting to secure an appointment
to the post of Record Clerk. Having accepted the appointment, it was not
open to the respondent to challenge his appointment and to seek
appointment as a Junior Assistant from the initial date of appointment. The
Division Bench has ordered, in effect that though the respondent was
appointed as a Record Clerk and served in that capacity, the appointment
should nonetheless be treated as an appointment made to the post of a
Junior Assistant from the initial date of appointment as a Record Clerk though
without any consequential monetary benefits. The appellants have been
directed to give promotion from the cadre of Junior Assistant on that basis.
Such a course of action is unknown to service jurisprudence. As a result of
this direction, others who are similarly circumstanced, those who waited for a
vacancy in the Junior Assistant’s post and those who opted another lower
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post, would be seriously affected by allowing the respondent to claim an
undeserved benefit of this nature.
13 For the above reason, we are of the view that the judgment of the Division
Bench of the High Court and the ultimate direction is unsustainable. We
accordingly allow the appeals and set aside the impugned judgment and
order of the Division Bench of the High Court of Madras at its Madurai Bench
dated 8 December 2016. The writ petition filed by the respondent shall stand
dismissed. However, we clarify that this will have no bearing on the
promotion to which the respondent may be entitled to be considered or
which he may have been granted in the ordinary course, independent of the
impugned direction of the High Court.
14 The appeals are disposed of in the above terms.
15 Pending applications, if any, stand disposed of.
.…........….......………………........J.
[Dr Dhananjaya Y Chandrachud]
.…....…........……………….…........J.
[A S Bopanna]
New Delhi;
December 11, 2021
CKB
CA 7655-56/2021
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ITEM NO.15 Court 4 (Video Conferencing) SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) Nos.15689-15690/2019
(Arising out of impugned final judgment and order dated 08-12-2016
in WA/llD No.585/2016 and 31-01-2019 in RAMD No.14/2919 passed by
the High Court of Judicature at Madras at Madurai)
THE SECRETARY TO GOVERNMENT DEPARTMENT Appellant(s)
OF COOPERATION FOOD AND CONSUMER
PROTECTION & ORS.
VERSUS
A. KINGSTON DAVID Respondent(s)
(With appln.(s) for IA No.88836/2019 - EXEMPTION FROM FILING C/C OF
THE IMPUGNED JUDGMENT)
Date : 11-12-2021 These matters were called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE A.S. BOPANNA
For Appellant(s) Mr. Amit Anand Tiwari, Adv.
Mr. D. Kumanan, AOR
For Respondent(s) Mr. S. Nagamuthu, Sr. Adv.
Mr. M.P. Parthiban, AOR
UPON hearing the counsel the Court made the following
O R D E R
1 Delay condoned.
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2 Leave granted.
3 The appeals are disposed of in terms of the signed reportable judgment.
4 Pending applications, if any, stand disposed of.
(CHETAN KUMAR) (SAROJ KUMARI GAUR)
A.R.-cum-P.S. Court Master
(Signed Reportable Judgment is placed on the file)