Case Note & Summary
The Supreme Court allowed the appeals filed by the State of Tamil Nadu against the judgment of the Division Bench of the Madras High Court (Madurai Bench) dated 8 December 2016. The respondent's father, a Senior Inspector in the Animal Husbandry Department, died in harness on 29 March 2002. The respondent applied for compassionate appointment. Due to non-availability of vacancies in the post of Junior Assistant (for which he was qualified), he was offered and accepted the post of Record Clerk on 23 June 2010 with an undertaking not to claim the post of Junior Assistant in the future. He joined on 19 January 2011. Later, he filed a writ petition seeking retrospective appointment as Junior Assistant from the date of his initial appointment, which was dismissed by a Single Judge. The Division Bench reversed, relying on GO Ms No 1499 dated 3 August 1989, which directed authorities not to appoint a dependent to a lower post if qualified for a higher post, and directed the State to treat his appointment as Junior Assistant from the initial date with consequential promotions but without back wages. The Supreme Court held that the respondent, having voluntarily accepted the lower post with an undertaking, was estopped from challenging his appointment. The Division Bench's direction was unsustainable as it would grant an undeserved benefit and affect other candidates. The Court set aside the High Court's judgment and dismissed the writ petition, clarifying that any promotions earned in the ordinary course would not be affected.
Headnote
A) Service Law - Compassionate Appointment - Estoppel - A candidate who accepts a lower post with an undertaking not to claim a higher post is estopped from later seeking retrospective appointment to the higher post - The Division Bench's direction to treat the appointment as from the initial date to the higher post is unsustainable and unknown to service jurisprudence (Paras 11-12).
B) Service Law - Compassionate Appointment - Government Orders - GO Ms No 1499 dated 3 August 1989 - The direction in the GO that authorities should not appoint a dependent to a lower post when qualified for a higher post does not entitle the dependent to retrospective appointment after voluntarily accepting the lower post - The proper course was to approach the Collector for a suitable vacancy, but if no vacancy existed, the dependent could not be appointed at all (Paras 7, 11).
C) Service Law - Compassionate Appointment - Retrospective Promotion - The High Court's direction to promote the respondent from the cadre of Junior Assistant by treating service in the lower post as service in the higher post is impermissible and would adversely affect other similarly situated candidates (Paras 12-13).
Issue of Consideration
Whether a person appointed on compassionate grounds to a lower post with an undertaking not to claim a higher post can later seek retrospective appointment to the higher post based on a government order directing authorities not to appoint dependents to lower posts if qualified for higher posts.
Final Decision
The Supreme Court allowed the appeals, set aside the impugned judgment of the Division Bench of the Madras High Court dated 8 December 2016, and dismissed the writ petition filed by the respondent. The Court clarified that this will not affect any promotion the respondent may have received in the ordinary course.
Law Points
- Compassionate appointment is not a matter of right
- estoppel applies when candidate accepts lower post with undertaking
- retrospective appointment to a post never held is impermissible
Case Details
2021 LawText (SC) (12) 31
Civil Appeal Nos 7655-7656 of 2021 (Arising out of SLP (C) Nos 15689-15690 of 2019)
Dr Dhananjaya Y Chandrachud, A S Bopanna
Mr Amit Anand Tiwari (for appellants), Mr S Nagamuthu (for respondent)
The Secretary to Government, Department of Co-operation, Food and Consumer Protection and Others
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Nature of Litigation
Civil appeal against High Court judgment directing retrospective appointment on compassionate grounds
Remedy Sought
Appellants sought to set aside the High Court's direction to treat the respondent's appointment as Junior Assistant from the date of his initial appointment as Record Clerk
Filing Reason
The respondent, appointed as Record Clerk on compassionate grounds with an undertaking not to claim Junior Assistant, later sought retrospective appointment as Junior Assistant
Previous Decisions
Single Judge dismissed writ petition; Division Bench reversed and directed retrospective appointment; Supreme Court allowed appeal and set aside Division Bench judgment
Issues
Whether a compassionate appointee who accepts a lower post with an undertaking not to claim a higher post can later seek retrospective appointment to the higher post based on a government order
Whether the High Court's direction to treat service in a lower post as service in a higher post is permissible in service jurisprudence
Submissions/Arguments
Appellants: GO Ms No 1499 has no application when candidate voluntarily accepts lower post with undertaking; direction would allow respondent to steal a march over other candidates
Respondent: Appellants failed to follow procedure under GO Ms No 1499 to approach Collector for suitable vacancy; respondent suffered due to delay in appointment
Ratio Decidendi
A person who voluntarily accepts a lower post on compassionate grounds with an undertaking not to claim a higher post is estopped from later seeking retrospective appointment to the higher post. The High Court's direction to treat service in the lower post as service in the higher post is unknown to service jurisprudence and would adversely affect other candidates.
Judgment Excerpts
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.
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. Such a course of action is unknown to service jurisprudence.
Procedural History
The respondent's father died on 29 March 2002. Respondent applied for compassionate appointment. On 27 March 2009, informed that appointments for Junior Assistant would be based on seniority. On 15 March 2010, asked to opt for Record Clerk. Respondent opted on 23 June 2010 with undertaking. Joined as Record Clerk on 19 January 2011. Filed writ petition under Article 226. Single Judge dismissed. Division Bench reversed on 8 December 2016. Review dismissed on 31 January 2019. Special Leave Petitions filed on 28 March 2019 with 750 days delay, condoned. Supreme Court allowed appeals on 11 December 2021.
Acts & Sections
- Constitution of India: Article 226
