M. KENDRA DEVI versus THE GOVERNMENT OF TAMIL NADU AND OTHERS

Citation: [2022] 9 S.C.R. 255 · Decided: 10-03-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Dismissed

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Judgment (excerpt)

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M. KENDRA DEVI
v.
THE GOVERNMENT OF TAMIL NADU AND OTHERS
(Civil Appeal No(S). 1918 - 1919 of 2022)
MARCH 10, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Service Law: Tamil Nadu State and Subordinate Services
Rules, 1955 – r.35(aa) – Seniority – Appellants were selected as
Assistant Engineer – They were direct recruits of first batch selected
in 1991-1992 and the second batch in 1993-1995 but got
appointment in 1995 and 1998 – Candidates appointed on
compassionate basis stood regularized from 1993 – Seniority
assigned to compassionate appointees in the seniority list published
on 1 January 2004 – Claim by appellants-direct recruits for seniority
qua compassionate appointees – High Court, keeping the
humanitarian consideration, declined to interfere and dismissed
claim – On appeal, held: The compassionate appointments were
made after the judgment in Nagpal’s case – In Nagpal’s case,
compassionate appointments were restricted to the posts in Class
III and Class IV with an object to give relief to the family of the
deceased – The judgment in Nagpal’s case became the law and
binding on the state government under Art.141 – Therefore,
compassionate appointments were made de hors the said judgment
by the state government under its executive fiat, prima facie, not
sustainable in law – However, at the same time, the compassionate
appointments and the regularisation were not challenged and the
question was raised after long time and after seniority list came to
be published – Moreover, there was no allegation of their ineligibility
for post of Assistant Engineer – Thus, in the peculiar facts and
circumstances, compassionate appointees are entitled to seniority
as per the list for the reason that all compassionate appointments
were made at different point of time, and if that is taken at its face
value, there was no infirmity in the seniority – Prior to the joining
of the appellants, first and second batch of compassionate
appointments was regularized – The seniority being consequential
was rightly assigned to the compassionate appointees – Taking into
consideration the humanity aspect and the fact that compassionate
[2022] 9 S.C.R. 255
255
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SUPREME COURT REPORTS
[2022] 9 S.C.R.
appointees are in service for more than two decades, seniority list
not disturbed and not interfered – Constitution of India – Art. 141.
Dismissing the appeals, the Court
HELD: 1. This Court can take a judicial notice that
appointments were earlier made in Class II posts which are under
purview of the Commission and that was the reason for which
this Court in Nagpal’s case came heavily while holding that
compassionate appointment is not a vested right and held that
such appointments shall be restricted to the posts in Class III
and Class IV with an object to give relief to the family of the
deceased from financial destitution who have suddenly lost their
breadwinner and to help it to get over the emergency. The
compassionate appointments made on the post of Assistant
Engineer after the judgment of this Court in Nagpal’s case which
became the law and was binding upon the State Governments
under Article 141 of the constitution. If the appointments are
made de hors the judgment of this Court by the State Government
under its executive fiat, prima facie, are not sustainable in law
and that indeed denies consequential seniority. [Paras 28, 31 and
35][272-E-F; 274-F; 275-H; 276-A]
Umesh Kumar Nagpal v. State of Haryana and Others
[1994] 3 SCR 893 - referred to.
2. In the peculiar facts and circumstances, the question still
emerges as to whether such compassionate appointees are
entitled to claim their seniority in the cadre of Assistant Engineers
as published on 1st January, 2004. The question appears to be
affirmative for the reason that all compassionate appointments
were made at different point of time. The first batch of
compassionate appointees regardless of their nature of
appointment stood regularized w.e.f. 16th July, 1993 and the
second batch of compassionate appointees were treated to be
regular from the date of their initial appointment and became
entitled to claim consequential seniority in terms of Rule 35(aa)
of the scheme of Rules, 1955 and if that is taken at its face value,
there appears no infirmity in the seniority which has been assigned
to the compassionate appointees published on 1st January, 2004.
[Paras 39, 40][277-B-E]
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3. The fact which has come on record and reflected from
the 

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