Expressing anguish over practice of Tamil Nadu Govt. in avoiding settled law while making compassionate appointment, Apex Court refrains to disturb seniority list already assigned to such appointees

Read Judgment: M. Kendra Devi V. The Government of Tamil Nadu And Others 

Pankaj Bajpai

New Delhi, March 14, 2022: Finding that the compassionate appointees had already been in service for almost more than two decades and, were further promoted and few of them were on the verge of their retirement, the Supreme Court has said that any adverse comments made at this stage may certainly jeopardize the right and interest of the compassionate appointees, who were although beneficiaries but were never at fault. This fault lied with the State authorities in Tamil Nadu in making compassionate appointments de hors the judgment of this Court which was the law and binding upon the State Government under Article 141 of the Constitution. 

A Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka expresses their anguish to say that this attitude of the Government of Tamil Nadu in avoiding the judgment of this Court in Umesh Kumar Nagpal vs. State of Haryana and Others,(1994) 4 SCC 138 dated May 4, 1994, which was not only the law but binding on the State Government under Article 141 of the Constitution, is unpardonable. 

The Observation came in reference to certain appeals preferred by the officers who are direct recruits selected as Assistant Engineers after going through the process of selection held by the Tamil Nadu Public Service Commission, claiming their seniority qua such of the candidates who were appointed as Assistant Engineers at different points of time as compassionate appointees and prayed that in the seniority list of Assistant Engineers which came to be published by the State authorities as on January 1, 2004, the present batch of appellants who are direct recruits appointed as Assistant Engineers be ranked senior to the candidates who were appointed as Assistant Engineers on compassionate ground.

Their grievance primarily was that after the process of selection was initiated by issuance of an advertisement by the Commission, such of the candidates who had either not participated in the process of open selection or had failed to qualify but because of losing their breadwinner, had been directly appointed as Assistant Engineers as compassionate appointees and were placed en bloc senior to the direct recruits Assistant Engineers and that was in violation of Articles 14 and 16 of the Constitution and of Rule 35 of the Tamil Nadu State and Subordinate Services Rules, 1955. 

After considering the submissions, the Top Court observed that the compassionate appointment is an exception to the general rule of public employment through open selection in conformity of Articles 14 & 16 of the Constitution and the object of granting compassionate appointment is to enable the family to tide over certain crisis and to grant relief to the family against financial destitution who have lost their breadwinner.

Compassionate appointments are invariably made looking to the eligibility of the dependent seeking employment and the post held by the deceased who was the member of service and this Court can take a judicial notice that appointments were earlier made in Class II posts which are under purview of the Commission, added the Court. 

Speaking for the Bench, Justice Rastogi observed that this fact cannot be ruled out that the compassionate appointments made on the post of Assistant Engineer after the judgment of this Court in Umesh Kumar Nagpal vs. State of Haryana and Others,(1994) 4 SCC 138,  which became the law and was binding upon the State Governments under Article 141 of the Constitution.  

But, still it is unfortunate that Government of Tamil Nadu continued to make such compassionate appointments in Group ‘B’ posts thereafter from the year 1995 onwards which indeed were de hors the judgment of this Court but still allowed such compassionate appointments to continue who later became member of service and by this time, they are serving for the last more than two decades, added the Bench.

The Apex Court refrained to disturb the seniority list which had been assigned to the respective compassionate appointees, vis-à-vis, direct recruits Assistant Engineers to whom consequential seniority had been assigned undisputedly under Rule 35(aa) of Rules, 1955.