THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, FOOD AND CONSUMER PROTECTION AND OTHERS versus KINGSTON DAVID

Citation: [2021] 9 S.C.R. 733 · Decided: 11-12-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Judgment (excerpt)

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   [2021] 9 S.C.R. 733
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THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF CO-OPERATION,
FOOD AND CONSUMER PROTECTION AND OTHERS
v.
A KINGSTON DAVID
(Civil Appeal Nos 7655-7656 of 2021)
DECEMBER 11, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
A. S. BOPANNA, JJ.]
Service Law – Appointment – On Compassionate grounds –
Father of respondent died in harness – Respondent applied for
employment on compassionate grounds – Though respondent was
qualified for the post of Junior Assistant since there was no vacancy
in the post, he was given an option of either accepting the post of
Record Clerk or of waiting his turn in seniority on compassionate
grounds until a vacancy arose in the post of Junior Assistant –
Respondent accepted the post of Record Clerk and was appointed
with an undertaking that he would not claim the post of Junior
Assistant – Subsequently however, the respondent instituted writ
petition u/Art.226 of the Constitution seeking a revision of his
appointment from the post of Record Clerk to the post of Junior
Assistant with effect from the date of his initial appointment and for
subsequent promotions by considering the service rendered in the
cadre of Record Clerk – Respondent also sought back wages and
other monetary benefits – The petition was dismissed by a Single
Judge of the High Court – In writ appeal, Division Bench of the
High Court reversed the judgment of the Single Judge – Challenge
to – Held: The respondent took a conscious decision to avail of a
public appointment on 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 – He was plainly estopped from doing
so and could not have been appointed retrospectively to a post in
which he had never worked – Division Bench of High Court ordered,
in effect that though the respondent was appointed as a Record
Clerk and served in that capacity, the appointment should
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
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 –
Appellants were directed to give promotion from the cadre of Junior
Assistant on that basis – 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 – Order of Division Bench of High
Court set aside.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7655-
7656 of 2021.
From the Judgment and Order dated 08.12.2016 and 31.01.2019
of the Madurai Bench of Madras High Court in W.A.(MD) No. 585 of
2016 and in Review Applications (MD) No. 14 of 2019.
Amit Anand Tiwari, D. Kumanan, Advs. for the Appellants.
S. Nagamuthu, Sr. Adv., M.P. Parthiban, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD J.
1. The office has reported a delay of 750 days in filing the Special
Leave Petitions against the judgment and order of the High Court dated
8 December 2016. The delay has been explained on the ground that the
appellants had moved a review petition before the High Court. The review
petition was dismissed on 31 January 2019. The Special Leave Petitions
were filed on 28 March 2019. Hence, sufficient cause for condoning the
delay has been shown. The delay in filing the Special Leave Petitions is
condoned.
2. Leave granted.
3. These appeals arise from a judgment of a Division Bench at
the Madurai Bench of the Madras High Court dated 8 December 2016,
and the judgment dated 31 January 2019 in review.
4. The father of the respondent, who was working as a Senior
Inspector in the Animal Husbandry Department of the Government of
Tamil Nadu, died in harness on 29 March 2002. The respondent applied
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for employment on compassionate grounds. According to the appellant,
no direct recruitment had taken place between 2001 to 2006; there were
backlog vacancies and in terms of GOMs No 154 (Personnel and
Administrative Reforms Department) dated 19 September 2006, only
25% of the estimated vacancies in the post of Junior Assistant for a
sp

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