A two-judge Bench of Justice Ajay Rastogi and Justice Abhay S. Oka while expressing its anguish over the manner in which compassionate appointments were made in the State of Tamil Nadu held that appointments were made in contravention of Umesh Kumar Nagpal vs. State of Haryana and Others decided on 4th Mary, 1994 judgment in which it was specifically held that compassionate appointments shall be restricted to Class III and Class IV or Group C or D posts.

The Supreme Court dismissed the appeals filed 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 that they are seniors against such candidates who were appointed as Assistant Engineers as compassionate appointees.

The bench comprising heard the petition where the primary grievance was that after the process of selection was initiated by issuance of an advertisement by the Commission , Assistant Engineers were also appointed as compassionate appointees and are placed together with the seniors who were direct recruits Assistant Engineers and that is in violation of Articles 14 and 16 of the Constitution and of Rule 35 of the Tamil Nadu State and Subordinate Services Rules, 1955.

The Appellants in the matter were direct recruits of the first batch selected after going through the process of selection initiated in the year 1991-1992 and the second batch in the year 1993­-1995 by the Commission but they were appointed in the year 1995 and 1998 and their names are mentioned in the seniority list of Assistant Engineers as on 1st January 2004 published by the respondent State on 15th April 2004 which came to be determined in terms of Rule 35 (aa) of the Rules, 1955.

At the same time, the Government issued G.O. No.225 dated 15th February 1972 in the first instance providing compassionate appointment in the services which are outside the purview of the Commission but that came to be later amended by G.O. No.1119 dated 20th May 1981 permitting to appoint qualified professionals/dependents on a temporary basis to the technical posts coming under the purview of the Commission with a proviso that such compassionate appointees have to appear later before the Commission in the open competition for regular appointment. But G.O. No.1119 dated 20th May, 1981 came to be further modified by G.O. No.156 dated 16th July, 1993 permitting compassionate appointees who are technically qualified dependents to be appointed on regular basis or such of the compassionate appointees who are appointed prior thereto, to get their service regularized after getting concurrence from the Commission in terms of Regulation 16(b) of the Tamil Nadu Public Service Commission Regulations, 1954. Thus, such of the candidates who were temporarily appointed on compassionate basis pursuant to G.O. dated 20th May, 1981 stood regularized w.e.f. 16th July, 1993, the date on which the revised G.O. became effective and those who are appointed subsequent to G.O. dated 16th July, 1993 were considered to be regular appointees from the date of initial appointment as Assistant Engineers on compassionate ground.

The Supreme Court in its judgment observed that "Seniority either inter se or between direct recruits and promotees or recruitment made by different sources is being governed by a statutory scheme of rules laying down the principles according to which the seniority list has to be determined but experience shows that it has never been finalized and always remain a subject matter of challenge and that challenge is not restricted upto the High Courts, but such challenges are always settled after the final judgment of this Court and this creates a lot of disharmony amongst the officers and since this Court is also not in a position to settle such matters at the earliest, delay remains inevitable and becomes fatal to the right of individual and indeed impairs the efficiency, commitment and devotion with which the employee is supposed to work and discharge his public duty to the satisfaction of the authority."

The Apex Court observed, "It is well settled 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."

While dismissing the matter the Court expressed its anguish towards the State of Tamil Nadu in avoiding the judgment of the Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana and Ors.

It was observed by the Court,"Athough we deprecate the practice of State Government in making such compassionate appointments under Group 'B' post after the judgment of this Court in Nagpal's case (supra), still this Court refrain to disturb the seniority list which has been assigned to the respective compassionate appointees, vis-­à-­vis, direct recruits Assistant Engineers to whom consequential seniority has been assigned undisputedly under Rule 35(aa) of Rules, 1955 which may not call for our interference, at this belated stage, after each of them is in service for more than two decades and indeed right is being conferred to each of them and an individual although a beneficiary but was not at fault at any given point of time either at the time of entry into service or thereafter."

Accordingly, the Court dismissed the appeals.

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