"Unpardonable:" Supreme Court pulls up Tamil Nadu for compassionate appointments in violation of top court's 1994 ruling

The Supreme Court on Thursday pulled up the Tamil Nadu government for flouting its 1994 judgment in relation to compassionate appointments to the post of Assistant Engineers and determination of their seniority [M Kendra Devi vs Government of Tamil Nadu].A Bench of Justices Ajay Rastogi and Abhay S Oka said that it was "unpardonable" that Tamil Nadu had not adhered to the Court's 1994 judgment in Umesh Kumar Nagpal v. State of Haryana."This attitude of the Government of Tamil Nadu in avoiding the judgment of this Court in Nagpal’s case dated May 4, 1994, which was not only the law but binding on the State Government under Article 141 of the Constitution, if still overlooked and flouted in this manner, such an act of the State Government is unpardonable and cannot be countenanced by this Court," the judgment said.The Supreme Court was deciding appeals on the question of whether compassionate appointees are entitled to claim their seniority in the cadre of Assistant Engineers as compared to the ones who were selected by direct recruitment..The top court's decision in Umesh Kumar Nagpal vs. State of Haryana and Others had stated that compassionate appointments shall be restricted to class III and class IV, or group ‘C’ and group ‘D’ posts.The Government of Tamil Nadu, however, continued making such appointments even for class II posts until it was finally prohibited by a July 2006 government order (GO)..The Bench in the instant appeal noted that even though the 1994 judgment had become the law and has a binding force under Article 141 of the Constitution, the State failed to take cognisance of the same."The Government failed to take cognizance and allowed this practice of making compassionate appointment to Class II posts which was completely prohibited by this Court upto the date till GO stood revised on 19th July, 2006," the Court noted..Since the direct recruits of the said period became junior to compassionate appointees in the seniority list published by the State as on 2004, that became the subject matter of challenge at the behest of the direct recruits They filed writ petitions before the Madras High Court challenging the same. A single-judge dismissed the writ petitions on the premise that the appointments were not open to challenge at a belated stage after such a long lapse of time.On appeal, a Division Bench recorded its anguish and strong exception regarding the manner in which such appointments were made overlooking the judgment of the Supreme Court in Nagpal. However, keeping the humanitarian considerations and the fact that much water has flown since, the Court, did not interfere.Aggrieved, the direct recruits appealed before Supreme Court..When called upon, the Government of Tamil Nadu informed that the Nagpal judgment was for the first time made available to its Law Department only in 2001.The State submitted that after that, it put a ban on such compassionate appointments. .“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 refrains to disturb the seniority list which has been assigned to the respective compassionate appointees, visàvis, direct recruits Assistant Engineers,” the Bench in the present case ruled..The Bench held that such appointments taking place despite its judgment are prima facie "not sustainable in law and that indeed denies consequential seniority.”.However, it took into consideration the arguments of the private respondents that there was considerable delay and the respondents should be entitled to the benefit of 'sit back' theory.As per the same, a person is entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years.The Court said that it would not interfere at this belated stage since the private respondents had been in service for more than two decades and were not at fault."Although 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, visàvis, 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," the Court ruled.The appeals were thus dismissed. .Senior Counsel R Venkataramani, PS Patwalia and Guru Krishna Kumar appeared for the appellants. Senior Counsel V Chitambaresh and advocate Sriram Parakkat appeared for the private respondents. Additional Advocate General Amit Anand Tiwari represented the State..[Read Judgment]