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Umesh Kumar Nagpal vs State Of Haryana (Sawant, J.) on 4 May, 1994
V. Sivamurthy & Anr vs State Of A.P. & Ors on 12 August, 2008
Article 309 in The Constitution Of India 1949
Article 226 in The Constitution Of India 1949
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Madras High Court
M.Kendra Devi vs The Government Of Tamil Nadu on 22 January, 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.01.2013

CORAM

THE HONOURABLE MRS. JUSTICE R. BANUMATHI

and

THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN

Writ Appeal Nos.1826, 1827, 1906, 1907 and 1908 of 2011

M.P.No.1 of 2011 (4 Nos.)

W.A.Nos.1826 & 1827 of 2011

----------------------------

M.KENDRA DEVI .. Appellant

Vs

1. THE GOVERNMENT OF TAMIL NADU,

REPBY ITS SECRETARY,

LABOUR AND EMPLOYMENT DEPARTMENT,

FORT ST.GEORGE,

CHENNAI.

2. THE GOVERNMENT OF TAMIL NADU,

REP BY ITS SECRETARY,

HIGHWAYS DEPARTMENT,

FORT ST.GEORGE,

CHENNAI.

3. THE CHIEF ENGINEER (GENERAL),

HIGHWAYS DEPARTMENT,

CHEPAUK, CHENNAI.

4. THE TAMILNADU PUBLIC SERVICE COMMISSION,

REP, BY ITS CHAIRMAN,

CHENNAI.

5. R.SUNDARAMOORTHY

6. G.THATCHINAMOORTHY

7. S.KARTHIKEYAN

8. H.RAMESH

9. M.SOMASUNDARAMURUGAN

10. J.NIRMALA

11. M.SUNDARSINGH

12. M.SELVAKUMAR

13. S.PALANICHAMY

14. S. SETHUPATHY

15. R.BARANITHARAN

16. V.SENTHILKUMAR

17. V.V.NITHILAN

18. U.VELRAJ

19. K.SANTHAKUMAR

20. S.BALASUBRAMANIAN

21. V.SARAVANA SELVAN

22. R.PUGAZHENDI

23. A.SATHIYA VISWANATHAN

24. T.THIYAGARAJAN

25. S.MATHAN KUMAR

26. J.ILLAM VALUTHI

27. S.VELLIVEL

28. C.S.SENBAGAVALLI

29. M.CHADRASEKARAN

30. M.BALAJI

31. A.PRABAKARAN

32. M.MUTHUKUMARAN

33. S.SWAMINATHAN

34. R.BALASINGARAVELAN

35. J.PREM ANAND

36. P.SATHIYANARAYANAN

37. P.KRISHNAN .. Respondents

W.A.Nos.1906 to 1908 of 2011

----------------------------

1. N PRABHAKARAN

2. SS BASKARAN

3. PT MOHAN .. Appellants

Vs

1. GOVERNMENT OF TAMILNADU

REP. BY ITS SECRETARY

HIGHWAYS DEPARTMENT

FORT ST GEORGE

CHENNAI - 9.

2. GOVERNMENT OF TAMIL NADU

REP. BY ITS SECRETARY

LABOUR AND EMPLOYMENT DEPARTMENT

FORT ST. GEORGE

CHENNAI  9.

3. TAMIL NADU PUBLIC SERVICE COMMISSION

REP. BY ITS SECRETARY

CHENNAI  2.

4 CHIEF ENGINEER (GENERAL)

HIGHWAYS DEPARTMENT

CHEPAUK

CHENNAI  5.

5. R. SUNDARAMURTHY

6. G. THATCHINAMOORTHY

7. S. KARTHIKEYAN

8. H. RAMESH

9. M. SOMASUNDARAMURUGAN

10. J. NIRMALA

11. M. SUNDARSINGH

12. M. SELVAKUMAR

13. S. PALANICHAMY

14. S. SETHUPATHY

15. R. BARANITHARAN

16. V. SENTHIL KUMAR

17. V.V. NITHILAN

18. U. VELRAJ

19. K.SANTHA KUMAR

20. S. BALASUBRAMANIAN

21. V. SARAVANA SELVAN

22. R. PUGAZHENDHI

23. A. SATIYA VISWANATHAN

24. S. MATHAN KUMAR

25. J.ILLAM VALUTHI AE

26. S. VELLIVEL

27. C.S. SENBAGAVALLI

28. M. CHANDRASEKARAN

29. M. BALAJI

30. A. PRABAKARAN

31. M. MUTHUKUMARAN

32. S. SWAMINATHAN

33. R. BALASINGARAVELAN

34. R.SAKTHIVELAN .. Respondents

Prayer :- Writ Appeals filed against the common order dated 15 July 2011 in W.P.Nos.6457 and 6458 of 2005 and 32062 to 32064 of 2004

--------------------------------------------------------------------------------------

Mr.N. Subramanian : For Appellant in W.A.Nos.1826 and

1827 of 2011.

--------------------------------------------------------------------------------------

Ms.R. Vaigai

for Mr.Balan Haridoss : For Appellants in W.A.Nos.1906 to

1908 of 2011.

--------------------------------------------------------------------------------------

Mr. K.V. Dhanapalan

AGP : For Respondents 1 to 3 in

W.A.Nos.1826 and 1827 of 2011

and Respondents 1,2 and 4 in

W.A.Nos.1906 to 1908 of 2011

--------------------------------------------------------------------------------------

Mr. K.M.Vijayan

Senior Counsel : For Respondents 11,15,25 & 29 in

for M/s.K.M.Vijayan W.A.Nos.1826 and 1827 of 2011

and Associates Respondents 11, 15, 24 & 28 in

W.A.Nos.1906 to 1908 of 2011

--------------------------------------------------------------------------------------

Mr. R. Thiagarajan

Senior Counsel

for Mr.K.Muthappan : For Respondents 5,7,8,21 and 34

in W.A.Nos.1826 and 1827 of 2011

and Respondents 5,7,8,21 and 33

in W.A.Nos.1906 to 1908 of 2011

--------------------------------------------------------------------------------------

Mr. K. Venkataramanani

Senior Counsel

for

Mr.G.Venkateshwara- : For Respondents 6,9,14, 16 to 18 in

moorthy W.A.Nos.1826 and 1827 of 2011

and Respondents 6,9,14,18 & 25

in W.A.Nos.1906 to 1908 of 2011

--------------------------------------------------------------------------------------

Mr. N.G.R.Prasad

for Ms.G.Arulselvi : For Respondents 16,17,20 23 and 27

in W.A.Nos.1906 to 1908 of 2011

--------------------------------------------------------------------------------------

----------

J U D G M E N T

K.K.SASIDHARAN, J

Introductory:

Whether it is open to the directly recruited Assistant Engineers, Tamil Nadu Highways Engineering Service to challenge the appointments of the dependants of the deceased Government servants on compassionate basis and the Government Order governing such appointments and to claim seniority over them after a period of nine years, is the core issue that arises for our consideration in these intra-court appeals.

2. The appellants are aggrieved by the dismissal of the respective writ petitions challenging the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 and the seniority list of Assistant Engineers in the Tamil Nadu Highways Engineering Service dated 15 June 2004 placing the Assistant Engineers appointed earlier on compassionate basis above the regularly recruited Assistant Engineers. The procedural History:

3. The appellant in Writ Appeal Nos.1826 and 1827 of 2011 filed two writ petitions in W.P.Nos.6457 and 6458 of 2005. In W.P.No.6457 of 2005, the appellant challenged the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 relaxing certain conditions with respect to the Assistant Engineers appointed on compassionate basis and with a prayer to remove respondents 5 to 37 from the post of Assistant Engineers in the Tamil Nadu Highways Engineering Service. In W.P.No.6458 of 2005, the appellant challenged the seniority list dated 15 June 2004 and a further prayer was made to place her above respondents 5 to 37, who were appointed directly to the post of Assistant Engineer on compassionate grounds.

4. The appellants in W.A.Nos.1906 to 1910 of 2010 filed three writ petitions. W.P.No.32062 of 2004 was primarily against the seniority list dated 15 June 2004 and the consequential prayer was to place respondents 5 to 33, who were appointed on compassionate grounds, below them. In W.P.No.32063 of 2004, the payer was to quash the Government Order in G.O.Ms.No.155, Labour and Employment Department dated 16 July 1993 insofar as the order excluding Provident Fund Accumulation, Family Benefit, Death-cum-Retirement Gratuity, Encashment of leave at credit at the time of death, interest earnings which accrued on deposit of amounts, for the purpose of consideration of indigent circumstances for compassionate appointment and to declare G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 as illegal, arbitrary and contrary to Highways Service Rules. W.P.No.32064 of 2004 was filed to issue a writ of Declaration, declaring that the appointment of respondents 5 to 33 as Assistant Engineers in Highways Department was contrary to Highways Engineering Service Rules.

5. The appellants have projected a common case and taking into account the nature of reliefs claimed in the respective writ petitions, we consider it fit and proper to extract the background facts found in W.P.No.6457 of 2005.

W.P.No.6457 of 2005:

6. The appellant Ms.M.R.Kendra Devi obtained a degree in Engineering from Madurai Kamaraj University in the year 1988. While so, the Highways Department, Government of Tamil Nadu called for applications from qualified candidates for appointment to the post of Assistant Engineer (Civil), Category V in Tamil Nadu Higways Engineering Services. The notification indicated that the recruitment was for the purpose of filling up the vacancies for the year 1991-92. The appellant appeared for the written examination and on the basis of the results, she was called for an oral interview. The appellant was selected and appointed as Assistant Engineer on regular basis in the Tamil Nadu Highways Engineering Service as per proceedings dated 23 March 1995. The appellant joined the service immediately on 5 April 1995 and completed the probation on 4 April 1997. According to the appellant, as per Rule 35(a) of Tamil Nadu Sub-ordinate Service Rules, the list of seniority in the category of Assistant Engineers requires to be prepared on the basis of the rank assigned by the Tamil Nadu Public Service Commission on merit. However, no action was taken by the Tamil Nadu Highways Engineering Department to publish the seniority list for over a decade after her appointment. Though the seniority list was prepared vide proceedings dated 5 June 2004, the list was not notified or published. The appellant came to know of the seniority list dated 5 June 2004 through her colleague. The appellant was shocked to see that she was placed below the private respondents even though she was appointed against a vacancy of the year 1991-92. Thereafter, the appellant collected materials including the orders passed by the Government from time to time, permitting appointments on compassionate grounds to the temporary post, relaxing certain mandatory conditions at the relevant point of time. The appellant found that the Government originally issued an order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 permitting appointment of the family members of the deceased Government Servants possessing technical or professional qualification in the lowest category in the concerned subordinate service. However, it was specified that all such candidates should subsequently apply to the Tamil Nadu Public Service Commission (hereinafter referred to as "TNPSC") in the normal channel and get themselves selected for regular appointment in the posts in question. The condition regarding selection through normal process with reference to the Public Service Commission was relaxed by the Government as per order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993. The Government granted permission to appoint the dependants of the deceased Government Servants, who were technically and professionally qualified in the lowest category of post without referring to employment exchange temporarily at the first instance. Thereafter their services will be regularised with effect from the date of appointment after obtaining the concurrence of TNPSC. The Government Order protected the interest of those who have already been appointed on compassionate grounds by relaxing the condition regarding selection by normal process through TNPSC.

7. According to the appellant, the Government have no right to appoint the dependants of the deceased Government Servants possessing the required qualification in the lowest category of the concerned civil service. Similarly, the Government have no right to regularise the services of those, who have not been appointed through TNPSC. Since, the seniority of the appellant was fixed far below the candidates who were appointed on compassionate basis, she was constrained to challenge the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 and the seniority list dated 15 June 2004 .

8. The appellants in the connected writ appeals in W.A.Nos.1906 to 1908 of 2011 have also filed similar writ petitions challenging the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 and the seniority list dated 15 June 2004 besides an independent writ petition to declare the appointment of Assistant Engineers, who were appointed on compassionate grounds as contrary to Highways Engineering Service Rules.

9. The Assistant Engineers, who were appointed on compassionate grounds filed counter affidavits contending that they were all qualified for appointment to the post of Assistant Engineers and as such they were rightly appointed by the Government. The contesting respondents have defended their appointments on the ground that the condition relating to appointment through TNPSC at a later point of time was rightly relaxed by the Government taking into account their long service.

10. The TNPSC filed a separate counter affidavit indicating that the Government have sought the concurrence of the Commission as provided under Regulation 16(b) of the Tamil Nadu Public Service Commission Regulations, 1954 for relaxing certain conditions of the earlier Government Order with respect to Assistant Engineers, who were appointed on compassionate basis. The Commission having found that the Government Servants were educationally qualified to hold the post of Assistant Engineers and satisfied with the other requirements like indigent circumstances, accorded its concurrence. Accordingly, their services were regularised.

11. The Deputy Secretary to Government, Labour and Employment Department, Government of Tamil Nadu also filed a counter affidavit justifying the action taken by the Government to regularise the services of Assistant Engineers, who were appointed on compassionate basis. According to the Government, the compassionate appointees were all in possession of the required qualification and taking into account the continuous service, their appointments were regularised by issuing an order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993. The Government made the position very clear that the practice of appointing the dependants of the deceased Government servants possessing the required qualification as Assistant Engineers, Civil Assistant Surgeons and Deputy Agricultural Officers respectively has been now dispensed with. It was further submitted that the Government issued an order in G.O.Ms.No.42, Labour and Employment Department dated 12 March 2007 to the effect that appointment to the technical posts  Group "A" or Group "B" cannot be made by way of compassionate appointment.

Disposition by the learned Judge:

12. Before the learned Single Judge, the appellants contended that the initial appointment of the compassionate appointees were made in violation of Articles 14 and 16 of the Constitution of India. While making such appointments, the Government have not assessed the financial position of the appointees as to whether the dependants of the deceased Government servants were actually in need of employment and as to whether they satisfied the eligibility criteria. By way of an alternative submission, the appellants contended that even if the Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 is treated as valid, still, the Government grievously erred in relaxing the condition with regard to the subsequent appointment through TNPSC. The appellants also contended that the direct recruits, who were appointed against the vacancies for the earlier years should have been placed above the compassionate appointees and prayed for setting aside the seniority list.

13. The learned Single Judge scanned the relevant Government Orders in the light of the law laid down by the Supreme Court and opined that the Government was fully justified in issuing the orders in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 and as such it is not possible to set aside the appointments in question after a period of eleven years at the instance of those who were appointed by direct recruitment. The learned Judge was of the view that compassionate appointees joined the service long before the appointment of the appellants and as such their prayer to sideline the earlier appointees cannot be given the approval of the Court. The learned Judge also opined that the writ petitions are highly belated and as such the same should be dismissed on the ground of delay and laches. Accordingly, the writ petitions were dismissed. Feeling aggrieved by the common order dated 15 July 2011, the appellants are before us.

Submissions:

14. Mr.N.Subramanian, learned counsel for the appellant in W.A.Nos.1826 and 1827 of 2011 made the following submissions:

(i) The Government have no power to regularise the appointment of the compassionate appointees by relaxing the mandatory condition of the earlier order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981.

(ii) The Government have no right to make appointments to the posts which would come under Group "B". Compassionate appointment being a exception to the normal appointment, should have been made only to a lower level post like Group "C" or Group "D" and as such the very appointment of the contesting respondents to a lowest level post in the Tamil Nadu Highways Engineering Service was against the statute.

(iii) The learned Single Judge was not correct on observing that the appellants have filed writ petitions with considerable delay. It was only after issuing the seniority list on 15 June 2004, the appellants came to know of the seniority position and immediately, thereafter the writ petitions were filed. Therefore, there was no undue delay in approaching the Court.

(iv) The Tamil Nadu Highways Engineering Service Rules does not contain a provision for appointment on compassionate ground. Therefore the appointments of the private respondents were not in tune with the statutory rules.

15. Ms.R. Vaigai, learned counsel for the appellants in W.A.Nos.1906 to 1908 of 2011 made extensive submissions both on facts as well as on law. The following are her substantial contentions: (i) The Government order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 while permitting compassionate appointment made it clear that all such candidates at a later point of time should apply to the TNPSC in the normal channel and get selected for regular appointment to the posts in question. However, the said condition was subsequently relaxed without any authority.

(ii) The Government have made appointments to the lowest category of posts in the Tamil Nadu Highways Engineering Department. Therefore, there is no question of issuing a subsequent order relaxing the condition in respect of such appointments. In short, compassionate appointment cannot be modified at a later point of time which would have the effect of making a fresh appointment.

(iii) The learned Judge grievously erred in rejecting the writ petitions on the ground of delay and laches. The Government have not published the list of Assistant Engineers in the Gazette. The seniority list was not prepared for years together. It was only during the year 2004, seniority list was published. Immediately the appellants filed writ petitions challenging the seniority list and the earlier Government Orders relaxing the condition regarding compassionate appointment. Therefore it cannot be said that the writ petitions were unduly delayed.

(iv) Though the appellants were all appointed at a later point of time, the fact remains that their appointments were against the vacancies for the earlier years. Therefore, the appellants should have been given due seniority and a march over the compassionate appointees.

16. Thiru N.G.R.Prasad, learned counsel for respondents 16,17,20,23 and 27 in W.A.Nos.1906 to 1908 of 2011 made the following submissions:

(i) The private respondents were appointed on compassionate basis to the lowest category in Tamil Nadu Highways Engineering Service taking into account their qualification. Since several such appointments were made as Assistant Engineers, Civil Assistant Surgeons and Deputy Agricultural Officers depending upon their qualification, it was not possible to appoint them as Group "C" or Group "D" at a later point of time, in case they were not selected by the TNPSC. This made the Government and that too, at the instance of the Employees Association to issue an order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 for the purpose of relaxing the condition.

(ii) The Government order in question was issued as early as on 16 July 1993. The services of private respondents were all regularised with effect from 16 July 1993. The writ petitions were filed only in 2004 and 2005 and as such the learned Single Judge was fully justified in dismissing the writ petitions on the ground of delay and laches.

(iii) The appellants were all appointed at a later point of time and as such they cannot take a march over the respondents, who were appointed earlier.

17. Thiru R. Thiagarajan, learned Senior Counsel appearing for respondents.5,7,8 21 and 34 in W.A.Nos.1826 and 1827 of 2011 and respondents 5,7,8,21 and 33 in W.A.Nos.1906 to 1908 of 2011 would contend : (i) The appellants were all appointed subsequent to the appointment of the compassionate appointees and as such their seniority was rightly fixed by the department taking into account the length of service.

(ii) The Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 was issued in consultation with TNPSC. The TNPSC agreed to regularise the services of the compassionate appointees and as such the appointees substantially complied with the conditions of the earlier Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 with respect to the subsequent appointment through TNPSC.

18. Thiru K.V. Dhanapalan, learned Additional Government Pleader appearing on behalf of the State made the following submissions:

(i) The writ petitions were filed after considerable delay and a such the learend Judge was right in dismissing the petitions on the ground of laches.

(ii) The Government have regularised the services of private respondents pursuant to the impugned Government Order. However, regularisation orders were not challenged. The appellants are not entitled for challenging the consequential proceedings.

19. Thiru K.Venkataramani, learned Senior Counsel for respondents 6,9,14,16 to 18, 20,23, 26, 28 in W.A.No.1826 and 1827 of 2011 and respondents 6,9,14, 18 and 25 in W.A.Nos.1906 to 1908 of 2011 would contend:

(i) The Government have got power to relax the recruitment rules. The Government having found that the dependants of the deceased Government servants who were technically and provisionally qualified, appointed them in the lowest category of post by taking a conscious decision to relax the condition regarding selection through normal channel and with reference to TNPSC. The TNPSC has given its concurrence for taking such a course. Therefore, the appellants cannot be heard to say that the appointments de hors TNPSC are liable to be set aside.

(ii) The respondents were all appointed long before the appointment of the appellants and as such, they were rightly placed above the direct recruits in the seniority list published by the department.

(iii) The appellants were aware of the seniority position long back. However, they have not challenged the Government Order within a reasonable time. Therefore the writ petitions were rightly dismissed.

Analysis:

20. There is no dispute that compassionate appointment is an exception to the normal rule of public appointment. Compassionate appointments are made with a view to help the dependants of the deceased Government servants to tide over temporary difficulties. In order to claim appointment on compassionate basis, there should be a scheme in operation. The availability of the scheme is a condition precedent for making such appointments. The dependants of the deceased Government servants cannot be heard to say that they should be appointed to a particular post with reference to their educational qualification. There should be a specific Regulation giving right to the dependants of the deceased Government servants to apply for a particular post taking into account his/her qualification. Statutory Background:

21. The Government of Tamil Nadu originally issued an order in G.O.MsNo.225 Labour D/15 February 1972 permitting recruitment of the dependants of the deceased Government servants, which includes son/unmarried daughter and near relatives, who died in harness without reference to the employment exchange to all the posts which falls outside the purview of TNPSC with certain conditions. The Government later issued an order in G.O.Ms.No.560, Labour and Employment dated 3 August 1977 extending the benefits of compassionate appointments to the families of the deceased Government servants, who died in harness prior to 15 February 1972. The concession was made applicable even to the post which would come under the purview of TNPSC. The TNPSC in its letters dated 28 December 1977 and 22 July 1978 expressed the view that it would be sufficient if the dependants/relatives of the deceased was provided with employment in a post not higher than that of a Junior Assistant. The TNPSC wanted the Government to issue a comprehensive order governing the appointments on compassionate basis.

22. The Government appears to have examined the suggestion given by the TNPSC in detail. The Government was of the view that it would be proper and fair to appoint a candidate with reference to the qualification possessed by him and that it would not be administratively expedient to appoint the candidate possessing technical/professional qualifications like B.E., M.B.B.S. Etc., to the post of Junior Assistant. The Government accordingly issued an order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 permitting appointment of the dependants of the deceased Government servants, who possess the technical and professional qualification, on temporary basis without referring to Employment Exchange to the initial or starting category of posts for which the qualifications are the minimum prescribed. The Government further directed that such appointees shall apply to the TNPSC in the normal channel and get themselves selected for regular appointment to the post. A comprehensive Government Order was issued on 20 May 1981. It was on the strength of this Government Order, majority of the contesting respondents were appointed on compassionate basis to the post of Assistant Engineer. We are informed that several other dependants of the deceased Government servants, who were in possession of M.B.B.S. Degree were appointed as Assistant Surgeons under the TNPSC. Similarly the dependants of the Government servants, who were in possession of B.Sc. in Agricultural Science were appointed as Deputy Agricultural Officers in Agricultural department.

23. The Government thereafter issued an order in G.O.Ms.No.554, Labour and Employment Department, dated 9 April 1990 extending the benefits of the earlier orders to the dependants of the deceased Government servants retiring on medical invalidation. However, a specific condition was incorporated to the effect that those who were appointed to the technical posts of initial or starting category within the purview of TNPSC should apply to the service commission in the normal channel and they should get themselves selected for regular appointment to the concerned posts.

24. The Government issued an order in G.O.Ms.No.23 Labour and Employment Department dated 10 February 1993 creating supernumerary posts for giving appointments on compassionate grounds. Even in the said Government Order a condition was prescribed that the appointment of all cases of technically and professionally qualified candidates in posts within the purview of TNPSC will only be temporary, subject to their getting selected by the Commission in the normal course, for regular appointment.

25. The Government issued an order in G.O.Ms.No.155 Labour and Employment Department dated 16 July 1993 explaining the indigent circumstances so as to enable the concerned departments to consider the case of dependants of the deceased employees for compassionate appointment.

26. The crucial order in G.O.Ms.No.156, Labour and Employment Department was issued on 16 July 1993. The preamble to the said Government Order contains the reasons which weighed with the Government to relax the condition regarding selection through TNPSC at a later point of time. The Government found that there was inherent risk in the procedure relating to the appointment on compassionate basis to the initial or starting category of a post for which the qualification is the minimum prescribed under the Service Rules. In case the candidate is not in a position to fair well, he would lose his job, which would defeat the very purpose for which the compassionate appointment scheme has been formulated. It would also run counter to the Government policy that persons appointed under compassionate ground should not be ousted. The Government was of the view that having recognised the need to provide employment consistent with the qualifications possessed by the candidate, it does not seem fair to put one class of persons alone in jeopardy merely because they were appointed as Engineers, Civil Assistant Surgeons etc., on account of higher qualification possessed by them. The Government appears to have consulted the TNPSC. The TNPSC vide its letter dated 22 May 1992 agreed to dispense with the condition regarding the necessity to appear before the Commission for selection along with the candidates from open market. The Government ultimately issued an order to the effect that the dependants of the deceased Government servants who were technically or professionally qualified should be appointed by the appointing authority in the lowest category of post for which his/her qualification is the minimum prescribed under the relevant service rules for direct recruitment, temporarily in the first instance and thereafter to regularise their services with the concurrence of TNPSC.

Analysis  The facts:

27. The contesting respondents were all appointed on the strength of the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993. It appears that some of the respondents in W.A.No.1908 of 2011 were appointed subsequent to the Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981. However, the fact remains that compassionate appointees, who were in service pursuant to the Government Order in G.O.Ms.No.1119 were all regularised with effect from 16 July 1993 on the basis of the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993.

28. The appellants were all appointed in the post of Assistant Engineers through TNPSC. The appellant in Writ Appeal Nos.1826 and 1827 of 2011 was appointed on 23 March 1995. The 1 and 2nd appellants in W.A.Nos.1906 to 1908 of 2011 were appointed against the vacancies of the year 1994-95 and the third appellant against the vacancy of the year 1995-96. Even though they were appointed way back in the year 1994 and 1995, the writ petitions were filed only in 2004 challenging the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993.

29. The question is whether it is open to the subsequent appointees to challenge the appointments of the dependants of the deceased Government servants and their subsequent regularisation after a period of about nine years.

30. The appellants are correct in their contention that the Government should have appointed the dependants of the deceased Government servants in any of the posts classified as Group "C" or Group "D" and not against Group "B" post. However the fact remains that the Government have permitted such appointments in the initial category post in the Tamil Nadu Highways Engineering Service. The Government have also made similar appointments in Tamil Nadu Health service and Agricultural department. It is also a matter of record that the Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 were withdrawn subsequently and now, appointments are made only as per the Government order in G.O.Ms.No.42, Labour and Employment (Q1) Department dated 12 March, 2007. It is therefore clear that after issuance of the Government Order in G.O.Ms.No.G.O.Ms.No.42, Labour and Employment (Q1) Department dated 12 March, 2007, compassionate appointments are now made only in Group "C" and Group "D" posts.

31. The other question, therefore, is whether the dependants of the deceased Government servants, who were appointed on the basis of the earlier Government Orders should be ousted from service on account of the relaxation of the condition regarding subsequent appointment through TNPSC.

32. The appellants have no case that the contesting respondents were instrumental in issuing the Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and the subsequent order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993. The private respondents availed the benefits of the prevailing Government Order and got appointments. Subsequently their services were regularised. The appellants were not in service as on the date on which the contesting respondents were appointed on compassionate basis. The services of the compassionate appointees were regularised with effect from 16 July1993, even before the appointment of the appellants as Assistant Engineers in Tamil Nadu Highways Engineering Service.

33. Since the contesting respondents were appointed long before the appointments of the appellants and taking into account their length of service, they were placed above in the seniority list. The appellants have contended that in spite of their appointments some where in the year 1995, seniority list was not published till 2004. The appellants have not taken any action either to verify the seniority position from the department or to approach the Court at the earliest to get the seniority fixed. The appellants have also contended that they were not aware of the Government Orders in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993. The Government Orders in question were made by the Government in exercise of its power under Article 162 of the Constitution of India. The appellants cannot be heard to say that the Government Orders were kept in cold storage and as such they were not aware of those orders. The appellants, who have got appointments way back in the year 1995 should have taken steps at the earliest point of time to challenge the compassionate appointments made on the basis of the Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and the subsequent order of relaxation, pursuant to the order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993.

34. The appellants now wanted the appointments of the contesting respondents to be quashed. However, the fact remains that the appellants have not challenged the basic Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981. The Government by issuing G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 has not made any new scheme for compassionate appointment. The subsequent order was issued for the purpose of relaxing the condition regarding requirement of fresh selection through TNPSC. The Government have given a valid explanation for taking such a course.

35. The dependants of deceased Government Servants were given compassionate appointments taking into account the distress condition of the family, consequent to the death of the sole bread-winner of the family. The Assistant Engineers who were appointed on compassionate basis continued in service for years together. In case the Government have appointed them in Group "C" or Group "D" posts without any further condition for appointment through TNPSC, they would have continued in employment. It was only the Government who have issued the order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 permitting appointment of the dependants of the deceased in the lowest post of the concerned service taking into account the qualification possessed by the candidates. The Government having found that the policy evolved earlier regarding compassionate appointment would lose its significance in case those appointees have to compete with others at a later point of time, revised the policy and that too with the concurrence of TNPSC. The order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 appears to be interlinked with the earlier Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981. The Government is correct in its contention that it is not possible to appoint a Civil Surgeon who got the appointment on compassionate basis as a Peon at a later point of time in case he is not selected by TNPSC. The policy evolved for giving compassionate appointment to the kith and kin of the deceased Government Servants would operate in a negative manner, in case such employees were made to appear for a selection process along with others for regular employment. The appellants have waited for years together to challenge the appointments of the contesting respondents made on the basis of the Government Order in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981. As stated earlier, it was only the consequential order which was put in issue in the respective writ petitions by the appellants.

36. The appellants have projected a case that it was only from the seniority list dated 15 June 2004 they came to know of the seniority position and the march given to the respondents over them. The explanation for the delay appears to be artificial and difficult to digest in view of the nature of posts involved in the matter. The appellants were all functioning as Assistant Engineers for years together. It is unbelievable that they were not aware of their seniority position for all these years. Nothing prevented the appellants from giving a representation to the department to fix the seniority of Assistant Engineers. The delay on their part to get the seniority fixed cannot be taken as a ground to get over the delay and laches in filing the writ petitions.

37. Seniority is a civil right. The services of the compassionate appointees were regularised with effect from 16 July 1993. The appellants have not challenged the individual orders of regularisation. The challenge is made only to the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993. The appellants have taken up a contention that the regularisation was made on the basis of the Government Order in G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 and as such, there is no requirement to challenge the regularisation order independently. We are not in a position to accept the said contention.

38. The services of the concerned respondents were regularised with effect from 16 July 1993 and they were also given the benefit of seniority. The seniority is now sought to be taken away after a considerable time. In service jurisprudence, seniority counts very much.

39. The concept of justice requires that the employees should be allowed the benefits of their long service. Seniority and service earned by an employee cannot be taken away lightly after a long passage of time and that too, at the instance of those, who entered the service at a later point of time. Jurisdiction under Article 226 of the Constitution of India is essentially an equity jurisdiction. Merely because the appellants have made out a case, the Court is not bound to extend its long arm. In case equity is not in favour of the appellants and the claim is made after a considerable period, those factors would operate against them with full vigour. The Court is not expected to do something which would cause heart-burning to the employees who are senior in service.

40. In case the employees are aggrieved on account of overlooking the seniority, even then, they should approach the Court within a reasonable time. Initial seniority would count for further promotions and as such, upsetting the seniority would have a chain of reactions on the employee. The employees challenging the seniority, should approach the Court within a reasonable time.

Decisions cited by the appellants and respondents:

41. We have been referred to a number of authorities by the learned counsel on either side.

42. Mr.N.Subramanian, learned counsel for the appellant in W.A.Nos.1826 and 1827 of 2011 placed reliance on the following decisions:

(i) Indra Sawhney v. Union of India 1992 Supp.(3) SCC 217 was relied on to contend that poverty can not be the basis for classification and providing reservation in public appointments.

(ii) Secy. State of Karnataka v. Umadevi (2006) 4 SCC 1 was cited to the proposition that right to livelihood under Article 21 of the Constitution of India cannot be invoked for regularisation of temporary appointees.

(iii) Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138 was referred to in support of the contention that compassionate appointments can be made only to class III and class IV posts.

(iv) State of Haryana v. Rani Devi (AIR 1996 SC 2445) was relied on in support of the contention that the scheme of compassionate appointment shall be made only in accordance with the scheme satisfying the touch stones of Articles 14 and 16 of the Constitution of India.

(v) Surya Kant Kadam v. State of Karnataka (2002) 9 SCC 455 was cited in support of the case that compassionate appointments cannot be made on the basis of executive instructions contrary to rules made under the proviso to Article 309 of the Constitution of India.

(vi) Shankara Coop. Housing Society Ltd., v. M. Prabhakar (2011) 5 SCC 607 was cited to support the case that delay and laches will be fatal, if there is negligence on the part of the petitioner, amounting to waiving of right.

43. Ms. Vaigai, learned counsel for the appellants in W.A.Nos.1906 to 1908 of 2011 placed reliance on the following decisions:

(i) Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138 was relied on and contended that mere death of an employee does not entitle his family to compassionate appointment. The Authority must consider whether the family of the deceased employee is unable to meet the financial crisis resulting from his death.

(ii) State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448 was cited to canvass the point that once appointment on compassionate ground as per the scheme had been completed, there is no question of giving a further benefit to such employee.

(iii) Director of Education (Secondary) v. Pushpendra Kumar (1998) 5 SCC 192 was relied on in support of the contention that compassionate appointment is an exception and as such exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right claimed by the main provision. The decision was relied on to contend that care has to be taken that compassionate appointment does not interfere with the right of others who are eligible for appointment to seek employment against the post which would have been available to them.

(iv) V. Sivamurthy v. State of Andhra Pradesh (2008) 4 CTC 446 was relied on to contend that compassionate appointment should be made only to posts in the lower category.

(v) Dr. Rajinder Singh v. State of Pubjab ((2001) SCC (L & S) 885 was cited to explain the legal position that no Government Order can be a substitute of the statutory Rules framed with the authority of law.

44. Mr.R. Venkataramani, learned Senior Counsel for respondents 6,9,14, 16 to 18 in W.A.Nos.1826 and 1827 of 2011 and Respondents 6,9,14,18 & 25 in W.A.Nos.1906 to 1908 of 2011 cited the following judgment of the Supreme Court.

(i) SBI v. Raj Kumar (2010) 11 SCC 661 was relied on to contend that in case there is a scheme for compassionate appointment, all those who are eligible under the scheme are entitled for appointment.

45. Mr. N.G.R.Prasad, learned counsel for Respondents 16,17,20 23 and 27 in W.A.Nos.1906 to 1908 of 2011 placed reliance on the following decision:

(i) Uttaranchal Forest Rangers' Assn. (Direct Recuit) v. State of U.P. (2006) 10 SCC 346 was cited to contend that seniority cannot be given on retrospective basis from a date when an employee has not even born in the cadre. Binding Legal Precedent:

46. (i) The Supreme Court in Roshan Lal v. International Airport Authority of India, 1980 Supp SCC 449 held that unless the basic order is challenged, the consequential order cannot be quashed.

(ii) The Supreme Court in H.S. Vankani v. State of Gujarat, (2010) 4 SCC 301, at page 314 observed that seniority is a Civil Right and as such it cannot be unsettled after a considerable period.

"38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority, etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest."

(iii) In Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610, the Supreme Court observed that the claim for seniority should be made within a reasonable time:

"23. It is necessary to keep in mind that a claim for seniority is to be put forth within a reasonable period of time.

............

26. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.

27. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time."

(iv) The Supreme Court in Union of India v. Shashank Goswami (2012) 4 Supreme 94 observed that the applicant for compassionate appointment cannot make any claim for a particular post.

47. The Government of Tamil Nadu in supersession of the earlier scheme now issued orders stipulating that compassionate appointment would be made only in Group "C" or "D" Pots. Therefore we consider it not necessary to examine the correctness of the earlier Government Order in G.O.Ms.No.1119 dated 20 May 1981 at this distant point of time. In fact, none of the appellants have challenged the said Government Order.

Conclusion:

48. The appointments in question were all made on the strength of the Government Orders in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 respectively. Those two Government Orders are not in force at present. The appellants are correct in their contention that the Government erred in appointing the dependants of the deceased Government servants in the initial category of posts, merely because they were in possession of the required qualification. However, the fact remains that such appointments were made on a large scale in various departments. The illegality committed by the Government in issuing orders permitting appointment in the initial level of post should not cause prejudice to the compassionate appointees, who were the beneficiaries of such orders. Even though the Government Order was issued way back on 20 May 1981, none of the erstwhile Assistant Engineers have challenged the said order. Subsequently, the Government issued another order dated 16 July 1993 to relax the condition. The said Government Order also remain unchallenged for years together. The individual orders of regularisation issued by the Government to the compassionate appointees also remain unchallenged. The compassionate appointees were permitted to be in service without any break. It was long thereafter the appellants have come up with a case alleging that the Government committed a serious mistake in making appointments to the lowest level posts in the concerned service. The contesting respondents were not instrumental in issuing the relevant Government Orders. They were only the beneficiaries of such orders. Majority of the appellants were not in service when the respondents were appointed. Therefore the appointments made by the Government pursuant to the orders in G.O.Ms.No.1119, Labour and Employment Department dated 20 May 1981 and G.O.Ms.No.156, Labour and Employment Department dated 16 July 1993 cannot be quashed at the instance of subsequent appointees. Similarly, the seniority of the compassionate appointees cannot be revised at the instance of those who were appointed at a later point of time. We are, therefore, of the view that the learned Single Judge was perfectly justified in dismissing the writ petitions. We do not find any error or illegality in the said order warranting our interference.

49. In the result, the writ appeals are dismissed. Consequently, the connected Mps are closed. No costs.

Tr/

To

1. THE GOVERNMENT OF TAMIL NADU,

REPBY ITS SECRETARY,

LABOUR AND EMPLOYMENT DEPARTMENT,

FORT ST.GEORGE,

CHENNAI.

2. THE GOVERNMENT OF TAMIL NADU,

REP BY ITS SECRETARY,

HIGHWAYS DEPARTMENT,

FORT ST.GEORGE,

CHENNAI.

3. THE CHIEF ENGINEER (GENERAL),

HIGHWAYS DEPARTMENT,

CHEPAUK, CHENNAI.

4. THE TAMILNADU PUBLIC SERVICE COMMISSION,

REP, BY ITS CHAIRMAN,

CHENNAI

======================================================================================

M.P.Nos.1 and 2 of 2012

in

W.A.No.1827 of 2011

Some of the Assistant Engineers have filed applications in M.P.Nos.1 and 2 of 2012 to implead them as parties to the writ appeal. When these two applications were taken up for consideration, we have made it clear that there is no question of impleading new parties in the writ appeal. However we have agreed to hear the counsel for the petitioners in M.P.Nos.1 and 2 of 2012 on merits. The learned counsels have re-iterated the contentions raised by the appellants in the writ appeals.

2. The petitioners were sitting on the fence. It was only after the dismissal of the writ petitions they have come up with the applications, showing interest in the matter. The writ petitions were dismissed both on merits as well as on the ground of laches. The ground regarding laches applies to the petitioners also. Therefore, we do not find any ground to entertain these applications. Accordingly, the applications are dismissed on the ground of laches. N o costs.

22.01.2013

Tr