LEGAL ISSUE: Whether a candidate who accepts a lower post on compassionate grounds, with an undertaking not to claim a higher post in the future, can later seek appointment to the higher post from the initial date of appointment.

CASE TYPE: Service Law

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

Judgment Date: 11 December 2021

Introduction

Date of the Judgment: 11 December 2021

Citation: (2021) INSC 774

Judges: Dr Dhananjaya Y Chandrachud J and A S Bopanna J

Can an individual who accepts a lower-level job on compassionate grounds, after the death of a family member, later demand a higher position from their initial date of appointment? The Supreme Court of India recently addressed this question, overturning a High Court decision that had allowed such a claim. The core issue revolved around whether an employee, who had willingly accepted a position as a Record Clerk with an explicit undertaking not to claim a Junior Assistant post, could later seek to be appointed as a Junior Assistant from the date of their initial appointment. This judgment clarifies the principles of compassionate appointment and the importance of upholding undertakings given by employees. The judgment was delivered by a two-judge bench comprising Dr. Dhananjaya Y Chandrachud J and A.S. Bopanna J.

Case Background

The respondent’s father, who was employed as a Senior Inspector in the Animal Husbandry Department of the Government of Tamil Nadu, passed away on 29 March 2002. Following his death, the respondent applied for employment on compassionate grounds. The government stated that there was no direct recruitment between 2001 and 2006, and there were backlog vacancies. According to GOMs No 154, dated 19 September 2006, only 25% of the estimated vacancies for Junior Assistant posts could be filled on compassionate grounds. The post of Junior Assistant falls under the Tamil Nadu Public Service Commission, and appointments are made based on State-level seniority from the list of candidates awaiting compassionate appointment. The respondent was at serial number 49 on this list.

The respondent, who held a Bachelor’s degree in Arts, was informed on 27 March 2009 that appointments for Junior Assistant posts would be based on seniority. On 15 March 2010, he was asked to choose whether he would accept a position as a Record Clerk/Office Assistant under the Registrar of Cooperative Societies. Since there was no vacancy for Junior Assistant, the respondent submitted an option letter on 23 June 2010, accepting the Record Clerk post with an undertaking not to claim the Junior Assistant post in the future. Consequently, he joined as a Record Clerk on 19 January 2011.

Timeline

Date Event
29 March 2002 Respondent’s father, a Senior Inspector, dies in service.
Between 2001 and 2006 No direct recruitment took place.
19 September 2006 GOMs No 154 issued, limiting compassionate appointments for Junior Assistants to 25% of vacancies.
27 March 2009 Respondent informed that Junior Assistant appointments would be based on seniority.
15 March 2010 Respondent asked to opt for Record Clerk/Office Assistant post.
23 June 2010 Respondent submits option letter accepting Record Clerk post with an undertaking.
19 January 2011 Respondent joins as a Record Clerk.
8 December 2016 Madras High Court Division Bench rules in favor of the respondent.
31 January 2019 Review petition dismissed by the High Court.
28 March 2019 Special Leave Petitions filed before the Supreme Court.
11 December 2021 Supreme Court allows the appeals and sets aside the High Court’s order.
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Course of Proceedings

The respondent filed a writ petition in the High Court of Judicature at Madras under Article 226 of the Constitution, seeking a revision of his appointment from Record Clerk to Junior Assistant, effective from his initial appointment date, along with back wages and other benefits. The single judge of the High Court dismissed the petition, stating that compassionate appointment is not a matter of right. However, the Division Bench of the High Court reversed this decision in a writ appeal. The Division Bench’s decision was primarily based on GO Ms No 1499, issued by the Labour and Employment Department on 3 August 1989.

Legal Framework

The High Court’s Division Bench relied on GO Ms No 1499, issued by the Labour and Employment (Q1) Department dated 3 August 1989. Paragraph 2 clause (iii) of this GO Ms states:

“(iii) The appointing authorities under no circumstances should appoint a dependent to a lower post when the 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.”

Additionally, the State government referred to GO Ms No 154 (Personnel and Administrative Reforms Department) dated 19 September 2006, which stipulates that only 25% of the estimated vacancies for the post of Junior Assistant can be filled on compassionate grounds in a specific year.

Arguments

Appellants’ Arguments:

  • The appellants argued that GO Ms No 1499 dated 3 August 1989 does not apply in this situation, where the respondent was appointed as a Record Clerk at his own request, based on his option letter and an undertaking that he would not claim the post of Junior Assistant in the future.
  • They contended that the High Court’s directions would give the respondent an unfair advantage over other candidates who were also appointed as Record Clerks at their own request, as well as those who waited for their turn for a Junior Assistant post.

Respondent’s Arguments:

  • The respondent argued that the appellants failed to follow the procedure outlined in GO Ms No 1499 dated 3 August 1989.
  • He contended that if the procedure in the GO Ms had been followed, the Collector would have been able to determine if vacancies were available in other departments.
  • The respondent claimed that he suffered because, despite his father’s death in 2002, he was appointed only in 2011.
  • The respondent also mentioned that he had been promoted to Junior Assistant in 2019 through the normal promotion channel.

Submissions Table

Party Main Submission Sub-Submissions
Appellants GO Ms No 1499 does not apply.
  • Respondent was appointed as Record Clerk at his own request.
  • Respondent gave an undertaking not to claim Junior Assistant post.
Appellants High Court’s directions create an unfair advantage.
  • Respondent would gain an advantage over others who accepted Record Clerk posts.
  • Respondent would gain an advantage over those who waited for Junior Assistant vacancies.
Respondent Appellants failed to follow GO Ms No 1499.
  • Procedure in GO Ms required approaching the Collector for suitable vacancies.
Respondent Respondent suffered due to delayed appointment.
  • Father died in 2002, but appointment only in 2011.
Respondent Respondent promoted to Junior Assistant in 2019.
  • Respondent received promotion through normal channel.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue was:

  • Whether a candidate who accepts a lower post on compassionate grounds, with an undertaking not to claim a higher post in the future, can later seek appointment to the higher post from the initial date of appointment.
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Treatment of the Issue by the Court

Issue Court’s Treatment
Whether a candidate who accepts a lower post on compassionate grounds, with an undertaking not to claim a higher post in the future, can later seek appointment to the higher post from the initial date of appointment. The Court held that the respondent, having accepted the post of Record Clerk with an undertaking not to claim the post of Junior Assistant, was estopped from seeking appointment to the higher post from the initial date of appointment. The Court found the High Court’s direction to be unsustainable.

Authorities

The Supreme Court considered the following legal provisions and government orders:

  • GO Ms No 1499, Labour and Employment (Q1) Department, dated 3 August 1989: This order directed that appointing authorities should not appoint a dependent to a lower post if they possess the qualifications for Junior Assistant/Typist, and should approach the Collector for suitable vacancies.
  • GO Ms No 154 (Personnel and Administrative Reforms Department) dated 19 September 2006: This order stipulated that only 25% of Junior Assistant vacancies could be filled on compassionate grounds.

Authorities Table

Authority Court How the Authority was Treated
GO Ms No 1499, Labour and Employment (Q1) Department, dated 3 August 1989 Government of Tamil Nadu The Court held that this GO did not apply in the present case because the respondent had made a conscious decision to accept a lower post with an undertaking not to claim a higher post in the future.
GO Ms No 154 (Personnel and Administrative Reforms Department) dated 19 September 2006 Government of Tamil Nadu The Court noted that this GO limited the number of compassionate appointments for Junior Assistant posts.

Judgment

Treatment of Submissions

Party Submission Court’s Treatment
Appellants GO Ms No 1499 does not apply. Accepted. The Court agreed that GO Ms No 1499 did not apply in the present case due to the respondent’s undertaking.
Appellants High Court’s directions create an unfair advantage. Accepted. The Court agreed that the High Court’s direction would create an unfair advantage for the respondent.
Respondent Appellants failed to follow GO Ms No 1499. Rejected. The Court held that the respondent’s acceptance of the lower post with an undertaking negated this argument.
Respondent Respondent suffered due to delayed appointment. Acknowledged but not considered a valid ground to overturn his undertaking.
Respondent Respondent promoted to Junior Assistant in 2019. Acknowledged but not considered relevant to the issue of retrospective appointment.

The Supreme Court overturned the High Court’s decision, stating that the respondent, having accepted the post of Record Clerk with a clear undertaking, was estopped from claiming the post of Junior Assistant from the initial date of appointment. The Court emphasized that the respondent had made a conscious decision to accept the lower post and could not later challenge this decision. The Court stated that:

“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 Court also noted that the High Court’s direction to treat the respondent’s appointment as a Junior Assistant from the initial date of appointment was against established service jurisprudence. The Court observed that:

“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 post, would be seriously affected by allowing the respondent to claim an undeserved benefit of this nature.”

The Supreme Court clarified that its judgment would not affect any promotion the respondent may have received through the normal course of employment, independent of the High Court’s directions.

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Treatment of Authorities

Authority Court’s View
GO Ms No 1499, Labour and Employment (Q1) Department, dated 3 August 1989 The Court held that this GO did not apply in the present case because the respondent made a conscious decision to accept a lower post with an undertaking not to claim a higher post in the future.
GO Ms No 154 (Personnel and Administrative Reforms Department) dated 19 September 2006 The Court noted that this GO limited the number of compassionate appointments for Junior Assistant posts and was relevant to the context of the case.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

  • Conscious Decision: The respondent made a conscious decision to accept the post of Record Clerk with an undertaking not to claim the post of Junior Assistant in the future. This voluntary decision was a significant factor in the Court’s reasoning.
  • Estoppel: The principle of estoppel prevented the respondent from challenging his appointment after having accepted it with a clear undertaking.
  • Service Jurisprudence: The Court found that the High Court’s direction to treat the respondent’s appointment as a Junior Assistant from the initial date was against established service jurisprudence.
  • Fairness and Equity: The Court was concerned that the High Court’s decision would create an unfair advantage for the respondent over other similarly situated candidates.

Sentiment Analysis Table

Reason Percentage
Conscious Decision 40%
Estoppel 30%
Service Jurisprudence 20%
Fairness and Equity 10%

Fact:Law Ratio Table

Category Percentage
Fact 60%
Law 40%

Logical Reasoning Flowchart

Issue: Can a candidate who accepts a lower post on compassionate grounds later claim a higher post from the initial date?
Respondent accepted Record Clerk post with an undertaking not to claim Junior Assistant post.
Principle of Estoppel applies: Respondent cannot challenge his own decision.
High Court’s direction is against established service jurisprudence.
High Court’s direction creates unfair advantage for the respondent.
Supreme Court sets aside High Court’s order.

Key Takeaways

  • A candidate who accepts a lower post on compassionate grounds with an undertaking not to claim a higher post is generally estopped from later claiming the higher post from the initial date of appointment.
  • Compassionate appointments are not a matter of right, and candidates must adhere to the terms and conditions of their appointment.
  • Courts should be cautious in directing retrospective appointments, especially when it creates an unfair advantage for one candidate over others.
  • Service jurisprudence does not allow for retrospective appointments to posts in which the candidate has not actually served.

Directions

The Supreme Court clarified that its judgment would not affect any promotion the respondent may have received through the normal course of employment, independent of the High Court’s directions.

Development of Law

The ratio decidendi of this case is that a person who accepts a lower post on compassionate grounds with an undertaking not to claim a higher post is estopped from later claiming the higher post from the initial date of appointment. This judgment reinforces the principles of estoppel and the importance of upholding undertakings given by employees in the context of compassionate appointments. It also clarifies that retrospective appointments are generally not permissible under service jurisprudence, especially when they create an unfair advantage.

Conclusion

The Supreme Court allowed the appeals and set aside the High Court’s decision, holding that the respondent, having accepted the post of Record Clerk with an undertaking, could not claim the post of Junior Assistant from his initial date of appointment. The judgment underscores the importance of upholding undertakings and adhering to established service jurisprudence.