Holding

Compassionate appointees are entitled to the seniority assigned to them in the 2004 list, and the appeals are dismissed.

Summary

The appellants, direct recruits selected as Assistant Engineers by the Tamil Nadu Public Service Commission, challenged the seniority accorded to compassionate appointees in the 1 January 2004 seniority list, arguing that such appointments to Class II posts violated Articles 14 and 16 and the Nagpal judgment which restricts compassionate appointments to Class III and IV. The Supreme Court noted that the compassionate appointments were made after the Nagpal decision and were therefore contrary to law, but they had been regularised, the appointees had served for over two decades, and their seniority was assigned in accordance with Rule 35(aa) of the 1955 Service Rules. While deprecating the State’s practice of making such appointments, the Court held that the seniority list could not be disturbed at this stage and that the compassionate appointees were entitled to the seniority they enjoyed. Consequently, the appeals were dismissed.

Issues considered

Whether compassionate appointments to Class II posts made after the Nagpal judgment are legally valid.
Whether compassionate appointees are entitled to seniority over direct recruits under Rule 35(aa) of the Tamil Nadu State and Subordinate Services Rules, 1955.
Whether the seniority list dated 1 January 2004 can be interfered with at this belated stage.
Whether the State's actions violate Articles 14 and 16 of the Constitution.

Legislation cited

Constitution of Indias. Art. 14, s. Art. 141, s. Art. 16
Tamil Nadu Public Service Commission Regulations, 1954s. Regulation 16(b)
Tamil Nadu State and Subordinate Services Rules, 1955s. Rule 35(aa)

Subjects

senioritycompassionate appointmentClass II postsRule 35(aa)Articles 14, 16, 141Tamil Nadu service rulesjudicial reviewpublic service recruitmenthumanitarian consideration

Judgment

[2022] 9 S.C.R. 255 255

M. KENDRA DEVI A
v.
THE GOVERNMENT OF TAMIL NADU AND OTHERS
(Civil Appeal No(S). 1918 - 1919 of 2022)
MARCH 10, 2022 B
[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
C
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 D
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
E
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 F
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
G
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 H
255
256 SUPREME COURT REPORTS [2022] 9 S.C.R.

A 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
B 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
C 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
D 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
E [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
F 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
G 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]
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 257
AND OTHERS

3. The fact which has come on record and reflected from A
the seniority list dated 1st January, 2004 is that the appellants
are direct recruits who joined service after their selection on the
recommendations made by the Commission and prior to their
becoming member of service, first and second batch of
compassionate appointments stood regularized and that being
B
so, the seniority being consequential has been rightly assigned
to the compassionate appointees, vis-à-vis, direct recruits as
reflected in the seniority list published on 1st January, 2004, which
is in conformity with Rule 35(aa) of Rules 1955. [Para 41][277-E-
G]
4. Although this court deprecates the practice of State C
Government in making such compassionate appointments under
Group ‘B’ post after the judgment of this Court in Nagpal’s case,
still this Court refrain to disturb the seniority list which has been
assigned to the respective compassionate appointees, vis-à-vis,
direct recruits Assistant Engineers to whom consequential D
seniority has been assigned undisputedly under Rule 35(aa) of
Rules, 1955 which may not call for 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. E
[Paras 46 and 47][279-B-D]
Case Law Reference
[1994] 3 SCR 893 referred to Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1918- F
1919 of 2022.
From the Judgment and Order dated 22.01.2013 of the High Court
of Judicature at Madras in W.A. Nos.1826 and 1827 of 2011.
With
G
Civil Appeal Nos.1920-1922 of 2022.
Guru Krishna Kumar, Sr. Adv., Y. Arunagiri, Raghunatha
Sethupathy B., P. Soma Sundaram, Anand Sathiyaseelan, Rajat Sehgal,
Pranav Sachdeva, N. Subramaniyan, Jatin Bhardwaj, Ms. Neha Rathi,
Advs. for the Appellant. H
258 SUPREME COURT REPORTS [2022] 9 S.C.R.

A Amit Anand Tiwari, AAG, Rakesh K. Sharma, T. Harish Kumar,
Navneet Dugar, Dr. Joseph Aristotle S., Ms. Mary Mitzy, Ms. Devyani
Gupta, D. Kumanan, R. Chandrachud, D. Venkata Krishna,
Venkateshwara Moorthy, V. Ramasubramanian, Sriram P., S.
Gowthaman, G. Venkateswara Moorthy, Ms. M. Venmani, Advs. for the
Respondents.
B
The Judgment of the Court was delivered by
RASTOGI, J.
1. Leave granted.

C 2. The instant appeals have been preferred by the officers who
are direct recruits selected as Assistant Engineers after going through
the process of selection held by the Tamil Nadu Public Service
Commission(hereinafter being referred to as the “Commission”), claiming
their seniority qua such of the candidates who were appointed as Assistant
Engineers at different points of time as compassionate appointees and
D prayed that in the seniority list of Assistant Engineers which came to be
published by the State authorities as on 1st January 2004, the present
batch of appellants who are direct recruits appointed as Assistant
Engineers be ranked senior to the candidates who were appointed as
Assistant Engineers on compassionate ground.
E 3. Their grievance primarily is that after the process of selection
was initiated by issuance of an advertisement by the Commission, such
of the candidates who had either not participated in the process of open
selection or had failed to qualify but because of losing their breadwinner,
have been directly appointed as Assistant Engineers as compassionate
F appointees and are placed en bloc senior to the direct recruits Assistant
Engineers and that is in violation of Articles 14 and 16 of the Constitution
and of Rule 35 of the Tamil Nadu State and Subordinate Services Rules,
1955(hereinafter being referred to as the “Rules 1955”).
4. Seniority either inter se or between direct recruits and promotees
or recruitment made by different sources is being governed by a statutory
G
scheme of rules laying down the principles according to which the
seniority list has to be determined but experience shows that it has never
been finalized and always remain a subject matter of challenge and that
challenge is not restricted upto the High Courts, but such challenges are
always settled after the final judgment of this Court and this creates a lot
H of disharmony amongst the officers and since this Court is also not in a
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 259
AND OTHERS [AJAY RASTOGI, J.]

position to settle such matters at the earliest, delay remains inevitable A
and becomes fatal to the right of individual and indeed impairs the
efficiency, commitment and devotion with which the employee is
supposed to work and discharge his public duty to the satisfaction of the
authority.
5. The case before us is also a live illustration of this kind. The B
service condition of the Assistant Engineers who became member of
the Tamil Nadu Highways Engineering Service are governed by the
Special Rules to the Tamil Nadu Highways Engineering Service and the
post of Assistant Engineer with which we are presently concerned is
indicated in the Schedule appended thereto in category (5) which provides
the modes of recruitment to the service which reads as under:- C

D

E

F

G

H
260 SUPREME COURT REPORTS [2022] 9 S.C.R.

A
Provided further that Assistant Engineers may, in individual
cases be temporarily appointed as Senior Draughting Officer,
Draughting Officer or Junior Draughting Officer in the office of
th Chief Engineer (Highways and Rural Works) by the Chief
Engineer (Highways and Rural Works) according to the
exigencies of service without prejudice to their appointment as
Assistant Engineers and the Assistant Engineers so appointed
shall draw the pay admissible to them as Assistant Engineers as
B long as they are retained as Senior Draughting Officer,
Draughting Officer or Junior Draughting Officer as the case
may be;

Provided also that Assistant Engineers may, in individual
cases, be temporarily appointed as Senior Draughting Officer,
Draughting Officer or Junior Draughting Officer according to
exigencies of service without prejudice to their appointment as
C Assistant Engineers -

(i) by the Superintending Engineer concerned with the approval
of the Chief Engineer (Highways and Rural Works) in his
circle;

(ii) by the Chief Engineer (Highways and Rural Works) in
respect of appointment in the Office of the Chief Engineer
(Highways and Rural Works) and the Assistant Engineers so
D appointed shall draw the pay admissible to them as Assistant
Engineers so long as they are retained as Senior Draughting
Officer, Draughting Officer or Junior Draughting Officer as the
case may be :

Provided also that the Draughting Officers, Junior Draughting
Officers or Overseer in the Highways and Rural Works
Department who have acquired A.M.I.E., or B.E., degree after
E the 2nd August 1980 shall not be eligible for appointment as
Assistant Engineers in the Highways and Rural Works
Department and they shall be appointed, along with fresh
candidates appointed by direct recruitment, to the post of
Assistant Engineer in the Tamil Nadu Highways Engineering
Service.

F 6. The appellants are aggrieved by the judgment impugned passed
by the Division Bench of the High Court of Madras dated 22nd January,
2013. They are direct recruits of first batch selected after going through
the process of selection initiated in the year 1991-1992 and the second
batch in the year 1993-1995 by the Commission but they were appointed
in the year 1995 and 1998 and their names are mentioned at Sr. Nos.194,
G 288, 336, 456 and 571 in the seniority list of Assistant Engineers as on
1st January, 2004 published by the respondent State on 15th April, 2004
which came to be determined in terms of Rule 35 (aa) of the Rules,
1955.

H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 261
AND OTHERS [AJAY RASTOGI, J.]

7. At the same time, the Government issued G.O. No.225 dated A
15 th February, 1972 in the first instance providing compassionate
appointment in the services which are outside the purview of the
Commission but that came to be later amended by G.O. No.1119 dated
20th May, 1981 permitting to appoint qualified professionals/dependents
on temporary basis to the technical posts coming under the purview of
B
the Commission with a proviso that such compassionate appointees have
to appear later before the Commission in the open competition for regular
appointment. But G.O. No.1119 dated 20th May, 1981 came to be further
modified by G.O. No.156 dated 16th July, 1993 permitting compassionate
appointees who are technically qualified dependents to be appointed on
regular basis or such of the compassionate appointees who are appointed C
prior thereto, to get their service regularized after getting concurrence
from the Commission in terms of Regulation 16(b) of the Tamil Nadu
Public Service Commission Regulations, 1954.
8. In consequence thereof, such of the candidates who were
temporarily appointed on compassionate basis pursuant to G.O. dated D
20th May, 1981 stood regularized w.e.f. 16th July, 1993, the date on which
the revised G.O. became effective and those who are appointed
subsequent to G.O. dated 16th July, 1993 were considered to be regular
appointees from the date of initial appointment as Assistant Engineers
on compassionate ground.
E
9. All candidates who were appointed on compassionate ground
as Assistant Engineers are falling under two categories:- (i) those
compassionate appointees as Assistant Engineers who were appointed
initially on temporary basis after 20th May, 1981 and stood regularized
w.e.f. 16th July, 1993 and became member of service; and (ii) those who
are compassionate appointees after 16th July, 1993 and their initial F
appointment itself is considered to be regular appointment for all practical
purposes and they became member of service from the date of entry
into service. The extracts of G.O. No.1119 dated 20th May, 1981 and
G.O. No.156 dated 16th July, 1993 are reproduced hereunder:-
“GOVERNMENT OF TAMILNADU G
ABSTRACT
Employment Assistants – Employment assistance to the
Dependants of deceased Government Servants – Appointment to
H
262 SUPREME COURT REPORTS [2022] 9 S.C.R.

A the dependants according to their educational qualifications –
Orders – Issued
LABOUR AND EMPLOYMENT DEPARTMENT
G.O.Ms. No. 1119 Dated : 20.05.1981
B Read Again
1. G.O.Ms.No. 225, Labour and Employment dated 15.02.72
2. G.O.Ms.No. 560, Labour and Employment dated 03.08.77.
Read also:
C 3. From the Secretary, Tamil Nadu Public Service Commission
Letter No. 8301 / B2 / 77 dated 28.12.77.
4. Govt. Letter No. 157 / N-I / 78-5, dated 22.07.78.
5. From the Secretary, Tamil Nadu Public Service Commission
D Letter No. Lr.No. 8301 / B2 /77 dated 02.09.78.
**********
ORDER:-
In the G.O. first read above, the Government have permitted
E the recruitment of son / unmarried daughter and near relative of
the Government servant who died in harness without reference
to Employment Exchange to all the posts when fall outside the
purview of the Tamil Nadu Public Service Commission subject to
certain conditions.
F 2. In the G.O. second read above, the above concession was
extended to families of the deceased Government Servants who
died in harness prior to 15-2-72 and the concession was made
applicable for the posts within the purview of the Tamil Nadu
Public Service Commission also. It was also ordered therein that
the dependant of the deceased Government servant can be
G appointed in any department if the qualifications of the applicant
do not permit his/her appointment to a post in the same department
in which his parent or husband or wife served or if he/she possesses
better qualifications for appointment in the outside department
provided the Head of the other Department also gives his
H concurrence. The dependant should however apply for
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 263
AND OTHERS [ AJAY RASTOGI, J.]

appointment only to the office in which the Government servant A
was in service at the time of his death, so that office can verify
the facts in the petition like, date of death, the indigent
circumstances of the family etc. In the Government letter fourth
read above, the Tamil Nadu Public Service Commission was
informed that the indigent circumstances under with the family of
B
the Government servant died in harness and the destitute nature
might warrant the appointment commensurate to the extent
possible with the Educational/Technical qualification of the
individual and that the appointment could be made available in
any department, and hence the orders issued in G.O.Ms.No. 560
Labour and Employment dt. 3-8-77 in this regard need no revision. C
3. In the letter third and fifth read above, the Tamil Nadu Public
Service Commission has express its view that the subject of the
Government is to provide immediate means of livelihood when
the bread-winner dies in harness and that it would be more than
sufficient if a close relative of the deceased is provided with D
employment in a POST NOT HIGHER THAN THAT OF A
JUNIOR ASSISTANT. The commission has also held that it would
however, be open to the candidate, who is qualified for a higher
post, to apply to it through normal course. The Commission is also
of the view that the orders issued in the G.O.Ms.No. 560, Labour
and Employment, dated 03.8.77 may result in the appointment or E
an individual possessing a degree outside the normal course, as
Deputy Collector or to similar posts. If a graduate is appointed as
Deputy Collector or Deputy Superintending of Police or to similar
posts and if another graduate is appointed only as Junior Assistant
taking into account the indigent circumstances of the family of F
the deceased, it would amount to discrimination. The Commission
has, therefore, requested the Government to examine the matter
in detail and issue suitable orders on the suggestion made by it.
4. The Government have carefully examined the above suggestion
of the Tamil Nadu Public Service Commission. They consider G
that it would be proper and fair to appoint the candidate with
reference to the qualifications possessed by him/he and that it will
not be administrative 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 therefore, in partial
H
264 SUPREME COURT REPORTS [2022] 9 S.C.R.

A modification of the orders issued in G.O.Ms.No. 560 Labour and
Employment dt. 3.8.77 direct that the dependant of the deceased
Government servant who possess the technical and professional
qualification be appointed temporarily without referring to
Employment Exchange and Tamil Nadu Public Service
Commission to the initial or starting category of post for which his
B
qualifications are the minimum prescribed, either in the department
where the parent at the time of his/her death or in any other
departments, in which such posts exist, by way or illustration, if
the dependants of the deceased Government Servants possess
B.E. or M.B.B.S. or B.Sc (Agri) Degree they may be appointed
C as Assistant Engineer, Civil Assistant Surgeons and Deputy
Agricultural Officers respectively temporarily. Like wise Diploma
holders will be appointed to the lowest category in the concerned
subordinate service. All such candidates subsequently shall apply
to the TNPSC in the normal channel and get selected for regular
appointment in the post. As regards the dependants of the deceased
D
Government servants who possess suitable requisite qualification
other than technical/professional they shall be appointed as Junior
Assistant regularly without reference to Employment Exchange
subject to the concurrence of the Tamil Nadu Public Service
Commission being obtained under the latter of regulation 16(b) of
E the TNPSC regulation 1954.
5) This order take effect from the issue of the Government order.

Sd/-
Secretary to Government,
F
Labour and Employment Department
(BY ORDER OF THE GOVENOR)
R. VARADARAJULU,
SECRETARY TO GOVERNMENT.
G To,
The All Heads of Department.”
“GOVERNMENT OF TAMILNADU
ABSTRACT
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 265
AND OTHERS [AJAY RASTOGI, J.]

PUBLIC SERVICES – Appointment on compassionate grounds A
of procedure for appointment of a dependant who possess
technical/professional qualifications – Regularisation of services
in consultation with Tamil Nadu Public Service Commission –
Orders – Issued.
LABOUR AND EMPLYOMENT DEPARTMENT B
G.O.Ms.No.156 Dated: 16.07.93
Read:-
1.G.O.Ms.No.1119 Labour and Employment 20.05.81
2. G.O.Ms.No.23 Labour and Employment dated 10.2.93 C
Read Also:-
3. Tamil Nadu Public Service Commission, Madras Lr.no.1089/
E4/92 dated 22.5.92.
********* D
ORDER:-
In the Government order first read above it has been ordered that
the dependant of a deceased Government Servant with technical
or professional qualification be appointed temporarily to the initial
or starting category of a post for which his qualification is the E
minimum prescribed in the Service Rules. It has also been ordered
that such appointment would only to the Tamil Nadu Public Service
Commission, subsequently in the normal channel and get
themselves selected for regular appointment in the post.
2. The inherent risk in this procedure is the possibility of non- F
selection of the dependant of the Tamil Nadu Public Service
Commission in the normal channel. He/she will then lose the job
and thus defeating the very purpose for which this scheme had
been formulated. It would also run counter to the Government’s
instruction that persons appointed under compassionate grounds G
should not be ousted. Once the Government recognise 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 get appointment as
Engineers, Civil Assistant Surgeons etc. on account of higher
qualification possessed by them. H
266 SUPREME COURT REPORTS [2022] 9 S.C.R.

A 3. The Government have re-examined the existing procedure and
addressed the Tamil Nadu Public Service Commission for its views.
The Tamil Nadu Public Service Commission has in its letter read
above agreed to dispense with the distinction mentioned above.
The Government therefore direct that the orders issued in the
G.O. first read above and these issued in Para 11 of the G.O.
B
Second read above are partially modified to the effect that in the
matter of appointment on compassionate grounds, the distinction
made in respect of technically or professionally qualified candidates
be dispensed with. The Government direct that the dependants of
deceased Government Servants who are technically or
C professionally qualified be appointed by the appointing authorities
concerned, in the lowest category of post/ or which his/her
qualification is the minimum prescribed in the relevant service
rules for direct recruitment, temporarily in the first instance,
provided there are vacancies and the condition described for
appointment on compassionate grounds are satisfied. Thereafter
D
their services will be regularised with effect from date of
appointment after obtaining the concurrence of the Tamil Nadu
Public Service Commission under latter part of Regulation 16(b)
of Tamil Nadu Public Service Commission Regulations, 1954.
4. In the cases of dependants of technically and professionally
E qualified who have already been appointed subject to the condition
that they will have to get themselves selected by the Tamil Nadu
Public Service Commission, in the normal course, their services
may be regularised with effect from the date of issue of this order,
after obtaining the concurrence of Tamil Nadu Public Service
F Commission under latter part of Regulation 16(b) of the Tamil
Nadu Public Service Commission Regulations, 1954.
(BY ORDER OF THE GOVERNOR)
R.VARADARAJUL
SECRETARY TO GOVERNMENT
G
To
All Heads of Department.
Sd/-
Superintendent”
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 267
AND OTHERS [AJAY RASTOGI, J.]

10. Despite the judgment of this Court reported in Umesh Kumar A
Nagpal vs. State of Haryana and Others1 decided on 04th May, 1994
wherein it was specifically held that compassionate appointments shall
be restricted to Class III and Class IV or Group ‘C’ and Group ‘D’ as
per the nomenclature, the State Government still allowed this policy to
continue and put restrictions on compassionate appointments confined
B
to Group ‘C’ and Group ‘D’ posts by its G.O. No.61 dated 19th July,
2006. As a corollary, this Court can take a judicial notice that even after
the judgment of this Court in Nagpal’s case (decided on 04th May, 1994)
which indeed became the law and has a binding force under Article 141
of the Constitution, still the Government failed to take cognizance and
allowed this practice of making compassionate appointment to Class II C
posts which was completely prohibited by this Court upto the date till
G.O. stood revised on 19th July, 2006.
11. The seniority list of Assistant Engineers for the first time as on
st
1 January, 2004 came to be published by the State respondent on
15 th April, 2004. Assistant Engineers who were appointed under D
compassionate ground initially on adhoc basis and regularized w.e.f.
16th July, 1993 have been separately categorized and their names are
shown in the seniority list from Sr. Nos.172 to 181 and the second batch
of candidates who were appointed under compassionate ground
undisputedly after the judgment of this Court in Nagpal’s case(supra) in
the year 1995 or thereafter, have been shown in a separate block E
commencing from Sr.Nos.288-307 and thereafter, the candidates who
were selected through open selection in reference to the process of
selection initiated in the year 1991-1992 came to be appointed in the
year 1995 and the selection process of second batch of candidates initiated
in the year 1993-1995 came to be appointed in the year 1998. Since the F
direct recruits of the said period became junior to compassionate
appointees in the seniority list published by the State respondent as on 1 st
January 2004, that became the subject matter of challenge at the behest
of the direct recruits Assistant Engineers by filing of their writ petitions
before the High Court of Madras.
G
12. Initially, when the writ petitions were filed at their instance,
the very appointment of compassionate appointees as Assistant Engineers
was questioned and consequently, it was prayed that writ petitioners be
placed higher in seniority qua compassionate appointees.
1
(1994) 4 SCC 138 H
268 SUPREME COURT REPORTS [2022] 9 S.C.R.

A 13. The learned Single Judge dismissed the writ petitions on the
premise that the compassionate appointments were made initially pursuant
to G.O. dated 20th May, 1981 and later by G.O. dated 16th July, 1993 and
are not open to challenge at a belated stage after such a long lapse of
time and that was the reason which prevailed upon the learned Single
Judge not to interfere in the appointments of compassionate appointees
B
as Assistant Engineers in the interregnum period and further it was held
that seniority is consequential and assigned from the date of regular
appointment in terms of Rule 35(aa) of Rules, 1955 being strictly in
accordance with the rules and needs no interference.
14. On appeal being preferred at the instance of the present
C appellants before the Division Bench, the Division Bench in its impugned
judgment indeed has recorded its anguish and strong exception regarding
the manner in which such appointments are made in the interregnum
period to the posts of Assistant Engineer on compassionate ground
overlooking the judgment of this Court in Nagpal’s case (supra) but
D keeping the humanitarian consideration and the fact that much water is
flown in the Ganges and such compassionate appointments being made
in accordance with the G.O dated 20th May, 1981 followed by G.O. dated
16th July 1993, the Division Bench was not inclined to interfere and
accordingly, dismissed their appeals by judgment impugned dated
22nd January, 2013, which is a subject matter of challenge in appeals
E before us.
15. Learned counsel for the appellants with usual vehemence at
their command submit that compassionate appointments are exception
to the open selection and is not a regular mode of recruitment prescribed
under the statutory scheme of rules and undisputedly, the present batch
F of compassionate appointees were appointed on adhoc basis merely on
the basis of their academic qualifications and the first batch of
compassionate appointees were regularized w.e.f. 16th July, 1993 and
the second batch from the date of appointment in contradistinction to the
regular selection held by the Commission and the time consumed in
G completing the process of selection was beyond control of the applicants
and their appointments are later made on the recommendations made by
the Commission in the year 1995 or 1998 and at least, such compassionate
appointees cannot have a march over them.
16. Learned counsel further submits that compassionate
H appointment on the posts of Assistant Engineer from its inception was in
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 269
AND OTHERS [AJAY RASTOGI, J.]

violation of Articles 14 and 16 of the Constitution with a limited exception A
being carved out to provide solace to get over the financial crisis who
have lost their breadwinner and can be compensated by offer of
compassionate appointment to the post in the category of Group ‘C’ and
Group ‘D’ and that too because of medical invalidation of the breadwinner
of the family and such compassionate appointments cannot be a boon to
B
them and that too overstepping the rights of such of the applicants who
are appointed through open selection after going through a cumbersome
procedure of competitive selection process held by the Commission.
17. Learned counsel for the appellants further submits that second
batch of compassionate appointments undisputedly, were made in the
year 1995 onwards and by that time, this Court came heavily upon the C
Governments in making appointment on compassionate ground in Class
I/II services and by the intervention of this Court in Nagpal’s case (supra),
it was finally held that the compassionate appointments shall confine to
the posts of Class III and Class IV and such appointments cannot be
permitted to be a boon in seeking appointments in Class I and Class II D
posts.
18. Learned counsel further submits that despite the judgment of
this Court became a law and binding upon the State Governments under
Article 141 of the Constitution, still appointments made in the year 1995
& onwards in Class II to the post of Assistant Engineer, are ex-facie E
illegal and the explanation tendered by the Government regarding such
compassionate appointments is nothing but a lame excuse and an eye
wash and the appellants became aggrieved only when they were placed
higher in seniority which came to be published as on 1 st January, 2004
and, at least, in the given facts and circumstances, delay in no manner
could be attributed to them and thus the finding which has been recorded F
by the learned Single Judge and affirmed by the Division Bench of the
High Court under the impugned judgment is not sustainable in law and
should be interfered by this Court.
19. Learned counsel for the appellants in alternate, submits that
looking to the tenure of service being rendered by the compassionate G
appointees, there may be a reason for which their appointment may not
be likely to be interfered with but at the same time, it cannot be saved at
the cost of causing injury to the present appellants who were appointed
through open selection which took two to three years in its finalization
and their appointments made after the entry of compassionate appointees H
270 SUPREME COURT REPORTS [2022] 9 S.C.R.

A into service in no manner can be read in detriment to their interest. At
least, to this extent, the present appellants are entitled to save their
seniority qua compassionate appointees who have no legitimate right to
be retained in service and to serve as Assistant Divisional Engineers into
service.
B 20. Per contra, learned counsel for the respondents, while
supporting the finding recorded by the High Court under the impugned
judgment submits that compassionate appointments are made in
accordance with the Government Order issued from time to time and
such of the compassionate appointees joined service in the year 1985 or
1986 or thereafter and despite serving for sufficient long time, they were
C regularized after their suitability being adjudged pursuant to G.O. dated
16th July, 1993 and accordingly, seniority has been assigned to them and
later appointees were substantively appointed from the date of
appointment. At the same time, the present appellants have joined service
and taken berth in the department much after their service being
D regularized and became member of service. Thus, in all circumstances,
the seniority assigned to the compassionate appointees is in accordance
with the scheme of Rule 35(aa) of Rules 1955.
21. Learned counsel for the respondents further submits that after
they have served for more than two to three decades and at this belated
E stage, it may not be open for the appellants either to question their
appointment or consequential seniority to tinker with and submits that
even their date of regularisation/date of appointment is 16 th July, 1993 or
thereafter and, at the same time, the direct recruits who are in the first
batch of appointees of 1991-1992 are appointed in the year 1995, and
the second batch of direct recruits whose selection process was initiated
F in the year 1993-1995 were appointed in the year 1998 or thereafter. As
such, by no stretch of imagination, such direct recruits could claim seniority
above the compassionate appointees who joined service much prior thereto
and became member of service on being regularized by the competent
authority.
G 22. In addition, learned counsel for the State submits that since
the compassionate appointments have been made in accordance with
the G.O. issued by the Government from time to time and seniority list of
Assistant Engineers was accordingly published as on 1 st January 2004,
which is in conformity with the scheme of Rules, 1955 and after being
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 271
AND OTHERS [AJAY RASTOGI, J.]

affirmed by the High Court under the impugned judgment, needs no A
further interference by this Court.
23. After the matter being heard by this Court and before we
conclude that matter, we called upon the State counsel by order dated
23rd February, 2022 to file affidavit indicating as to what was the reason
that after the judgment of this Court reported in Nagpal’s case (supra) B
(decided on 04th May, 1994) wherein, it was specifically held that
compassionate appointment shall be restricted to Class III and Class IV
or Group ‘C’ and Group ‘D’, as the case may be, still the Government
allowed this policy of making appointments in Class II to continue, until
withdrawn by G.O. dated 19th July, 2006.
C
24. Pursuant thereto, explanation has been furnished by the State
respondent in paragraph (6) of the explanation and it has been stated
that the judgment of this Court in Nagpal’s case (supra) was
communicated to the State Government by the Law Department vide its
letter dated 27th September, 2001 and pursuant thereto, the Government
put a ban on compassionate appointments except leaving certain category D
of posts such as teachers, doctors and police constabulary being essential
posts by letter dated 29th November, 2001 and it has been informed by
the learned counsel for the State that four compassionate appointments
in the teachers category of Class II were made and later the decision
was taken on 19th July, 2006 to restrict the compassionate appointments E
to the posts of Group ‘C’ and Group ‘D’ category.
25. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
26. Before we proceed, we make it clear that notice was issued
by this Court on 20th September, 2013 and the limited issue that remain F
open for consideration is confined to inter se seniority of compassionate
appointees vis-a-viz direct recruits. The order dated 20th September,
2013 passed by this Court reads as under:-
“Delay condoned.
G
Heard Mr. P. P. Rao, learned senior counsel in support of
this special leave petition. Mr. Rao states that the petitioner is not
challenging the appointment of respondent Nos.5 to 37. He,
however, states that though they were appointed prior to the
petitioner, their regularisation has come subsequent to her
H
272 SUPREME COURT REPORTS [2022] 9 S.C.R.

A appointment by G.O. dated 26.9.1996 with retrospective effect.
The petitioner is aggrieved because though these respondents have
been appointed on compassionate basis, in a highly irregular manner
they are being given seniority over her though she is a direct recruit
on merit. He is confining this petition only to the issue of seniority.
In view thereof, issue notice on the special leave petition. Issue
B
notice on the prayer for interim relief also.”
27. It is not disputed that the post of Assistant Engineer is in Class
II category and as per the scheme of Rules 1955, it is to be filled by
direct recruitment or through recruitment by transfer. These are two
modes of recruitment permissible for holding regular selection under the
C scheme of rules and so far as the appointment through direct recruitment
is concerned, it is to be made strictly through open selection by the
Commission.
28. It is well settled that the compassionate appointment is an
exception to the general rule of public employment through open selection
D in conformity of Articles 14 & 16 of the Constitution and the object of
granting compassionate appointment is to enable the family to tide over
certain crisis and to grant relief to the family against financial destitution
who have lost their breadwinner. Compassionate appointments are
invariably made looking to the eligibility of the dependent seeking
E employment and the post held by the deceased who was the member of
service and 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 (supra)
(decided on 04 th May, 1994) came heavily while holding that
compassionate appointment is not a vested right and held that such
F 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. In Nagpal’s case (supra), this Court held as under:-
“2. The question relates to the considerations which should guide
G while giving appointment in public services on compassionate
ground. It appears that there has been a good deal of obfuscation
on the issue. As a rule, appointments in the public services should
be made strictly on the basis of open invitation of applications and
merit. No other mode of appointment nor any other consideration
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 273
AND OTHERS [AJAY RASTOGI, J.]

is permissible. Neither the Governments nor the public authorities A
are at liberty to follow any other procedure or relax the
qualifications laid down by the rules for the post. However, to this
general rule which is to be followed strictly in every case, there
are some exceptions carved out in the interests of justice and to
meet certain contingencies. One such exception is in favour of
B
the dependants of an employee dying in harness and leaving his
family in penury and without any means of livelihood. In such
cases, out of pure humanitarian consideration taking into
consideration the fact that unless some source of livelihood is
provided, the family would not be able to make both ends meet, a
provision is made in the rules to provide gainful employment to C
one of the dependants of the deceased who may be eligible for
such employment. The whole object of granting compassionate
employment is thus to enable the family to tide over the sudden
crisis. The object is not to give a member of such family a post
much less a post for post held by the deceased. What is further,
D
mere death of an employee in harness does not entitle his family
to such source of livelihood. The Government or the public
authority concerned has to examine the financial condition of the
family of the deceased, and it is only if it is satisfied, that but for
the provision of employment, the family will not be able to meet
the crisis that a job is to be offered to the eligible member of the E
family. The posts in Classes III and IV are the lowest posts in
non-manual and manual categories and hence they alone can be
offered on compassionate grounds, the object being to relieve the
family, of the financial destitution and to help it get over the
emergency. The provision of employment in such lowest posts by
F
making an exception to the rule is justifiable and valid since it is
not discriminatory. The favourable treatment given to such
dependant of the deceased employee in such posts has a rational
nexus with the object sought to be achieved, viz., relief against
destitution. No other posts are expected or required to be given
by the public authorities for the purpose. It must be remembered G
in this connection that as against the destitute family of the deceased
there are millions of other families which are equally, if not more
destitute. The exception to the rule made in favour of the family
of the deceased employee is in consideration of the services
rendered by him and the legitimate expectations, and the change
H
274 SUPREME COURT REPORTS [2022] 9 S.C.R.

A in the status and affairs, of the family engendered by the erstwhile
employment which are suddenly upturned.”
(emphasis supplied)
29. In the instant case, the compassionate appointments were
made to the post of Assistant Engineer which is categorized in Class II
B but undisputedly were made in terms of the Government Order dated
20th May, 1981 followed with G.O. dated 16th July, 1993 and the State
Government finally withdrew these G.Os. pursuant to which
compassionate appointments were restricted to Class III and Class IV
in compliance of the judgment of this Court in Nagpal’s case (supra) by
C its G.O. dated 19th July, 2006.
30. It is also not disputed that the compassionate appointments on
the post of Assistant Engineer made prior to 16th July, 1993 were on
adhoc/temporary basis and are regularized by a single stroke of pen
pursuant to G.O. dated 16th July, 1993, and all later compassionate
D appointments on the post of Assistant Engineer made after 16 th July,
1993 were considered to be regular appointments from the date of initial
appointment and since the seniority has to be assigned from the date of
regular appointment in terms of Rule 35(aa) of the scheme of Rules
1955, in consequence thereof, the seniority to each of the compassionate
appointee as Assistant Engineer was assigned from the date of regular
E appointment when published as on 1st January, 2004.
31. This fact cannot be ruled out that the compassionate
appointments made on the post of Assistant Engineer after the judgment
of this Court in Nagpal’s case (supra) which became the law and was
binding upon the State Governments under Article 141 of the Constitution
F but still it is unfortunate that Government of Tamil Nadu continued to
make such compassionate appointments in Group ‘B’ posts thereafter
from the year 1995 onwards which indeed were de hors the judgment of
this Court but still allowed such compassionate appointments to continue
who later became member of service and by this time, they are serving
G for the last more than two decades. At the same time, their appointments
have not been interfered at any stage in the course of proceedings initiated
at the instance of the appellants and it is informed that they are further
promoted and few of them are on the verge of retirement.
32. If we look into the seniority list of Assistant Engineers which
is a cause of grievance raised by the appellants, the first batch of Assistant
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 275
AND OTHERS [AJAY RASTOGI, J.]

Engineers appointed on various dates under compassionate ground are A
indicated from Sr. Nos.172 to 174. These applicants were appointed
initially from 14th December, 1988 to 9th September, 1992 and were
regularized by a single stroke w.e.f. 16th July, 1993 and rest of them
from Sr. Nos.175 to 181. Later, compassionate appointees are indicated
from Sr. Nos.288-307 who were appointed from 20th February, 1995 to
B
12th January, 1998 and their initial appointment was considered to be the
regular appointment. As regards the direct recruits, they are indicated in
the category of 1991-1992 (Tamil Nadu Public Service Commission
Selection), shown from Sr. Nos.182-202 who were appointed from
03rd May, 1995 to 07th March, 1996, undisputedly, much after the regular
appointments of compassionate appointees in the first batch. So far as C
direct selection of second batch is concerned, they are shown in the
category of the year 1993-1995 (Tamil Nadu Public Service Commission
Selection) and their names are indicated from Sr. Nos.308-475 and all
were appointed from 29th January, 1998 to 13th October, 1999.
33. To make it further clear so far as the candidates selected D
through the Commission are concerned, their seniority in the cadre of
Assistant Engineer has been assigned according to the order of inter se
merit assigned by the Commission but placed below the compassionate
appointee Assistant Engineers who are indeed regularly appointed much
prior to the entry of direct recruits appointed as Assistant Engineers on
their open selection through the Commission. E

34. The seniority list of Assistant Engineers, for the first time,
came to be published as on 1st January, 2004 which has been placed on
record and the cause of grievance projected by the appellants by filing
writ petitions under Article 226 of the Constitution was that the
appointments of compassionate appointees to the post of Assistant F
Engineer were void from its inception and not in conformity with Articles
14 & 16 of the Constitution and being an exception to the general rule of
appointment in the public services to be made by open selection, disentitles
compassionate appointees to claim seniority above the direct recruit
Assistant Engineers in the seniority list published as on 1st January, 2004. G
The submission although did not find favour before the High Court.
35. We are of the view that after the judgment of this Court in
Nagpal’s case (supra) (decided on 4th May, 1994) became the law and
binding on the State Governments, still if the appointments are made de
hors the judgment of this Court by the State Government under its H
276 SUPREME COURT REPORTS [2022] 9 S.C.R.

A executive fiat, prima facie, are not sustainable in law and that indeed
denies consequential seniority.
36. At the same time, this Court cannot be oblivious of the situation
that the compassionate appointments in Group ‘B’(Assistant Engineers
in the instant case) were made, in the first instance, pursuant to G.O.
B dated 20th May, 1981 wherein it was specifically mentioned that such
compassionate appointments shall be on ad-hoc basis just to overcome
the financial crisis because the family has lost their breadwinner and
such incumbent has to qualify and undergo the process of regular selection
to be held by the Commission but later, by G.O. dated 16th July 1993, the
stipulation of qualifying to hold the post after selection to become member
C of service was deleted. In consequence thereof, all such earlier
appointments made in Group ‘B’ (Assistant Engineers in particular to
which we are concerned), made prior to 16th July, 1993 were admittedly
made on ad-hoc basis and because of stipulation being deleted under
G.O. dated 16th July, 1993, all such compassionate appointees stood
D regularized by a single stroke by the Government w.e.f. 16th July, 1993
and later compassionate appointments which were made on the post of
Assistant Engineers, their initial appointment was considered to be the
regular appointment for all practical purposes.
37. Neither the G.O. dated 20th May, 1981 nor the latter G.O.
E dated 16th July, 1993 were the subject matter of challenge, and by the
time the question was raised assailing compassionate appointments, much
water was flown by that time and on the date when the seniority list
came to be published of Assistant Engineers as on 1st January, 2004,
such compassionate appointees, by that time had attained seniority in
service for 7 to 12 years.
F
38. This Court can take a judicial notice that appointments on
compassionate basis as Assistant Engineers are made under the
respective G.Os. dated 20th May, 1981 or 16th July, 1993 and it is not the
case of the appellants that when such compassionate appointments were
made, either of them was ineligible at the time of initial appointment or
G appointed due to misrepresentation/concealment on the part of the
appointee. By the time the matter has travelled to this Court, each of the
compassionate appointee has now been in service for almost more than
two decades and as informed, are further promoted and few of them
are on the verge of their retirement. At this point of time, any adverse
H comments made at this stage may certainly jeopardize the right and
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 277
AND OTHERS [AJAY RASTOGI, J.]

interest of the compassionate appointees, who were although beneficiaries A
but were never at fault that indeed lies with the State authorities in making
compassionate appointments de hors the judgment of this Court which
was the law and binding upon the State Government under Article 141
of the Constitution.
39. In the peculiar facts and circumstances, the question still B
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.
40. The question, in our prima facie view, appears to be affirmative
for the reason that all compassionate appointments were made at different C
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 D
the seniority which has been assigned to the compassionate appointees
published on 1st January, 2004. It is also not the case of the appellants
that after they became member of service, the compassionate appointees
are later regularized retrospectively from the date of their initial
appointment. E
41. To the contrary, the fact which has come on record and
reflected from the seniority list dated 1st January, 2004 is that the
appellants are direct recruits who joined service after their selection on
the recommendations made by the Commission and prior to their
becoming member of service, first and second batch of compassionate F
appointments stood regularized and that being so, in our considered view,
the seniority being consequential has been rightly assigned to the
compassionate appointees, vis-à-vis, direct recruits as reflected in the
seniority list published on 1st January, 2004, which is in conformity with
Rule 35(aa) of Rules 1955.
G
42. We, at one stage, were of the view that whether such
appointments which were de hors the judgment of this Court, deserve to
be interfered with but taking into consideration the humanity aspect and
the fact that they are in service for more than two decades, we became
reluctant to make adverse comments which may cause prejudice to them.
H
278 SUPREME COURT REPORTS [2022] 9 S.C.R.

A At this stage, before we decided to conclude the matter, we called upon
the learned counsel for the State Government to file an additional affidavit
as to under what circumstances the appointments are being made on the
post of Assistant Engineers which is a Group ‘B’ post, at least, after the
judgment of this Court in Nagpal’s case (supra) (decided on 4th May,
1994).
B
43. In compliance of our order, an additional affidavit has been
filed by the Secretary to the Government, Labour Welfare and Skill
Development and the explanation tendered by the State Government is
far from satisfaction that the judgment in Nagpal’s case (supra) of this
Court dated 4th May, 1994 was for the first time made available to the
C Government by the Law Department vide letter dated 27th September
2001. Taking note of the judgment of this Court in Nagpal’s case(supra),
the State Government primarily proceeded and put a complete ban on
compassionate appointments, leaving aside certain categories of posts
such as teachers, doctors and police constabulary by letter dated 29th
D November, 2001 and learned counsel has further informed to this Court
that four appointments in the cadre of teachers which is Group ‘B’ Post
were made by the State authorities thereafter and still the Government
was so cognizant of the judgment of this Court, the detailed guidelines
for compassionate appointments were notified with a clear direction that
such compassionate appointments shall be restricted only to Group ‘C’
E and ‘D’ posts for the first time, by a letter dated 19th July 2006.
44. At the same time, this fact has not been disclosed in the affidavit
that apart from the post of Assistant Engineer to which the controversy
is brought before this Court, how many compassionate appointments in
Group ‘B’ posts are made by the State Government in various
F departments after the judgment of this Court in Nagpal’s case (supra)
decided on 4th May, 1994. This fact remains conspicuously silent for
various reasons which could be discerned by this Court from the material
available on record.
45. After going through the explanation which has been tendered
G by the State Government, this Court, records its anguish to say that this
attitude of the Government of Tamil Nadu in avoiding the judgment of
this Court in Nagpal’s case (supra) dated 4th May 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
H
M. KENDRA DEVI v. THE GOVERNMENT OF TAMIL NADU 279
AND OTHERS [AJAY RASTOGI, J.]

act of the State Government is unpardonable and cannot be countenanced A
by this Court.
46. After taking note of the rival submissions and the view which
we have expressed, 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 B
this Court refrain to disturb the seniority list which has been assigned to
the respective compassionate appointees, vis-à-vis, 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 C
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.
47. Consequently, these appeals fail and accordingly dismissed
with above observations. No costs.
D
48. Pending application(s), if any, shall also stand disposed of.

Devika Gujral Appeals dismissed.
(Assisted by : Shubhanshu Das, LCRA)

E

F

G

H