THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, FOOD AND CONSUMER PROTECTION AND OTHERS versus KINGSTON DAVID on 11 December 2021

1. The office has reported a delay of 750 days in filing the SpecialLeave Petitions against the judgment and order of the High Court dated8 December 2016. The delay has been explained on the ground that theappellants had moved a review petition before the High Court. The reviewpetition was dismissed on 31 January 2019. The Special Leave PetitionsFwere filed on 28 March 2019. Hence, sufficient cause for condoning thedelay has been shown. The delay in filing the Special Leave Petitions iscondoned.

2. Leave granted.

G3. These appeals arise from a judgment of a Division Bench atthe 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 SeniorInspector in the Animal Husbandry Department of the Government ofHTamil Nadu, died in harness on 29 March 2002. The respondent applied

THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,FOOD AND CONSUMER PROTECTION v. A KINGSTON DAVID[DR. DHANANJAYA Y CHANDRACHUD J.]

for employment on compassionate grounds. According to the appellant,no direct recruitment had taken place between 2001 to 2006; there werebacklog vacancies and in terms of GOMs No 154 (Personnel andAdministrative Reforms Department) dated 19 September 2006, only25% of the estimated vacancies in the post of Junior Assistant for aspecific year can be filled up on compassionate grounds. The post ofJunior Assistant falls within the purview of the Tamil Nadu Public ServiceCommission. It has been stated that under the terms of the abovegovernment order, the post can be filled up only by following a Statelevel seniority from the list of candidates awaiting appointment oncompassionate grounds. The respondent was at serial number 49 of thislist.

5. The qualification for the post of Junior Assistant is SecondarySchool Leaving Certification. The qualification for the post of RecordClerks was passing the 8[th ]standard. At the time of appointment, therespondent held a Bachelor’s degree in Arts. On 27 March 2009, therespondent was informed that appointments for the post of Junior Assistantwould be issued based on seniority. On 15 March 2010, he was requestedto opt whether he would willing to be appointed as a Record Clerk/Office Assistant under the Registrar of Cooperative Societies. As therewas no vacancy in the post of Junior Assistant, the respondent furnishedan option letter dated 23 June 2010 accepting the post of Record Clerkwith 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 theoffice of the Joint Registrar of Cooperative Societies, Sivagangai regionon 19 January 2011.

6. The respondent instituted a writ petition under Article 226 ofthe Constitution, seeking a revision of his appointment from the post ofRecord Clerk to the post of Junior Assistant with effect from 19 January2011, the date of initial appointment and for subsequent promotions byconsidering the service rendered in the cadre of Record Clerk. Therespondent also sought back wages and other monetary benefits. Thepetition was dismissed by a Single Judge at the Madurai Bench of theHigh Court on the ground that appointment on compassionate grounds isnot a matter of right. In a writ appeal, the Division Bench of the HighCourt has reversed the judgment of the learned Single Judge.

7. The principal ground which has weighed with the Division Benchof the High Court in reversing the judgment of the Single Judge is based AB

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Aon GO Ms No 1499, issued by the Labour and Employment (Q1)Department dated 3 August 1989. Paragraph 2 clause (iii) of the GO Mswhich has been extracted in the judgment of the High Court, reads asfollows:

“(iii) The appointing authorities under no circumstances shouldBappoint a dependent to a lower post when the dependent possessesthe qualifications required for the post of junior Assistant/Typiston the ground of non availability of vacancy in the office ordepartment or the dependents not willing to work in otherdepartments. In such circumstances, they should follow the existingprocedure of approaching the Collector of the District concernedCfor 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, theauthorities ought to have followed the procedure of moving the competentauthority for sanctioning of a suitable vacancy in case of the unavailabilityDof a vacancy in the post of Junior Assistant/Typist. Hence, it came to theconclusion that the appointment of the respondent as a Record Clerkinstead of as a Junior Assistant was due to the fault of the authorities. Inthe circumstances, the writ appeal was disposed of by directing theappellants to revive the appointment of the respondent to the post ofEJunior Assistant with effect from the date of his original appointment tothe post of Record Clerk, and to provide subsequent promotions fromthe cadre of Junior Assistant by considering the service rendered in thecadre of Record Clerk as service rendered in the cadre of JuniorAssistant. However, no back wages have been granted on the groundthat it was in pursuance of his option letter and undertaking that theFrespondent was appointed as a Record Clerk.

9. Mr Amit Anand Tiwari, learned counsel appearing on behalf ofthe appellants has urged two submissions : firstly, it has been submittedthat GO Ms No 1499 dated 3 August 1989 will have no application in asituation such as a present, where in view of the absence of suitableGvacancy in the post of Junior Assistant, the candidate seekingcompassionate appointment was appointed on the post of Record Clerkat his request, on his letter of option and on an undertaking that he wouldnot claim the post of Junior Assistant in the future. Secondly, it has beensubmitted that as a result of the directions of the High Court, theHrespondent will steal a march over other candidates who like him would THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,FOOD AND CONSUMER PROTECTION v. A KINGSTON DAVID[DR. DHANANJAYA Y CHANDRACHUD J.]

have been appointed to the post of Record Clerk on their request as wellas candidates who did not furnish such an undertaking but preferred towait in their turn of seniority for appointment to the post of JuniorAssistant.

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10. On the other hand, Mr S Nagamuthu, learned senior counselappearing on behalf of the respondent submitted that:

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(i) The failure of the appellants to appoint the respondent tothe post of Junior Assistant arose because they did not followthe procedure which was prescribed in GO Ms No 1499dated 3 August 1989; C

(ii) If the procedure which was envisaged in the above GO Mswas followed, it would have been possible for the Collectorto ascertain whether vacancies were available in any otherdepartment;

(iii) The respondent has, in fact, suffered as a consequencesince though his father who was in the Animal HusbandryDDepartment died on 29 March 2002, he was appointed onlyin January 2011; and

(iv) In any event, in 2019, the respondent has received promotionas a Junior Assistant in the normal channel of promotion.

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11. There is no dispute about the fact that though the respondentwas qualified for the post of Junior Assistant. Since there was no vacancyin the post, the respondent was given an option of either accepting thepost of Record Clerk or of waiting his turn in seniority on compassionategrounds until a vacancy arose in the post of Junior Assistant. The Statehas indicated in its pleadings that in terms of GO Ms No 154 (Personneland Administrative Reforms Department) dated 19 September 2006,only 25% of the estimated vacancies in the post of Junior Assistant for aspecified year can be filled up on compassionate grounds. The respondentwas ranked at serial number 49 in the seniority list for appointment. Thedecision of accepting the post of Record Clerk was entirely at the optionof the respondent. Having accepted the post and being appointed on 19January 2011 with an undertaking that he would not claim the post ofJunior Assistant, the respondent moved proceedings under Article 226of the Constitution seeking appointment from the initial date as a JuniorAssistant. The learned Single Judge was justified in coming to theconclusion that such a course of action was not open to the respondent, GH

Ahaving accepted the post of Record Clerk. He was plainly estoppedfrom doing so and could not have been appointed retrospectively to apost in which he had never worked. This is exactly what the DivisionBench has directed. The Division Bench interfered with the judgment ofthe Single Judge purely on the basis of GO Ms No 1499, Labour andEmployment Department (Q1) dated 3 August 1989. Paragraph 2 clauseB(iii) which has been extracted earlier, indicates that appointing authoritieswere directed not to appoint a dependent to a lower post when a dependentpossesses the qualifications required for Junior Assistant/Typist on theground of non-availability of vacancy or in the event that the dependentis not willing to work in any other department. The above stipulation alsoCstates that the Collector of the District should be approached for providinga suitable vacancy as suggested in GO Ms No 1179 dated 17 October1979. If at all, the above stipulation would indicate that the Collectorwould have to be approached for ascertaining whether any other suitablevacancy is available. If no vacancy was available, the respondent couldnot have been appointed at all.D

12. In this backdrop, the respondent took a conscious decision toavail of a public appointment on a compassionate basis by opting tosecure an appointment to the post of Record Clerk. Having acceptedthe appointment, it was not open to the respondent to challenge hisappointment and to seek appointment as a Junior Assistant from theEinitial date of appointment. The Division Bench has ordered, in effectthat though the respondent was appointed as a Record Clerk and servedin that capacity, the appointment should nonetheless be treated as anappointment made to the post of a Junior Assistant from the initial dateof appointment as a Record Clerk though without any consequentialFmonetary benefits. The appellants have been directed to give promotionfrom the cadre of Junior Assistant on that basis. Such a course of actionis unknown to service jurisprudence. As a result of this direction, otherswho are similarly circumstanced, those who waited for a vacancy in theJunior Assistant’s post and those who opted another lower post, wouldbe seriously affected by allowing the respondent to claim an undeservedGbenefit of this nature.

13. For the above reason, we are of the view that the judgment ofthe Division Bench of the High Court and the ultimate direction isunsustainable. We accordingly allow the appeals and set aside theimpugned judgment and order of the Division Bench of the High CourtH

THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,FOOD AND CONSUMER PROTECTION v. A KINGSTON DAVID[DR. DHANANJAYA Y CHANDRACHUD J.]

of Madras at its Madurai Bench dated 8 December 2016. The writpetition filed by the respondent shall stand dismissed. However, we clarifythat this will have no bearing on the promotion to which the respondentmay be entitled to be considered or which he may have been granted inthe ordinary course, independent of the impugned direction of the HighCourt.

14. The appeals are disposed of in the above terms.

15. Pending applications, if any, stand disposed of.

Bibhuti Bhushan Bose

Appeals disposed of.

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