The Secretary to Government, Department of Co-operation, Food and Consumer Protection and Others vs A. Kingston David

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: CA 7655-56/2021 2

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 CA 7655-56/2021 3

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 CA 7655-56/2021 4

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 CA 7655-56/2021 5

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. CA 7655-56/2021 6

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 CA 7655-56/2021 7

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 CA 7655-56/2021 8

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 9

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. CA 7655-56/2021 10

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)