Madras High Court
The State Of Tamil Nadu vs V.Muthamilselvan on 7 April, 2022
Writ Appeal No.496 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MRS. JUSTICE N.MALA
Writ Appeal No.496 of 2022
1. The State of Tamil Nadu,
represented by the Secretary to Government,
Department of Commercial Taxes
and Registration,
Fort St. George,
Chennai.
2. The Inspector General of Registration,
No.100, Santhome High Road,
Chennai 600 028.
3. The District Registrar (Administration),
Ariyalur Registration District,
Ariyalur. ... Appellants
vs.
V.Muthamilselvan ... Respondent
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 06.09.2021 passed by this Court in W.P.No.18651 of 2021.
Page No.1 of 9
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Writ Appeal No.496 of 2022
For Appellants : Mr.R.Neelakandan,
Addl. Advocate General,
assisted by
Mr.Stalin Abhimanyu,
Addl. Government Pleader
and Mr.P.Sathish,
Additional Government Pleader
For Respondent : Mr.T.Saikrishnan
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
This Writ Appeal is directed against the order dated 06.09.2021 passed
by the learned Single Judge in allowing the Writ Petition in W.P.No.18651
of 2021, whereby, the Respondents therein were directed to give effect to
G.O.Ms.No.1499, Labour and Employment (Q1) Department, dated
03.08.1989 from the date of the Writ Petitioner's initial appointment on
31.10.2017.
2. It is seen that, the Respondent/Writ Petitioner was appointed as
an Office Assistant on 31.10.2017 with the 3rd Respondent herein on
compassionate ground, after his father's demise on 08.10.2007. Before the
learned Single Judge, it was the case of the Writ Petitioner that, on the date
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Writ Appeal No.496 of 2022
of his appointment as an Office Assistant, he possessed higher qualification,
i.e. M.Com., M.L. and that, he need to be appointed in Group C post, as two
other similarly placed candidates have been appointed on compassionate
ground in Group C post.
3. Before the learned Single Judge, it was pointed out by the
learned counsel for the Writ Petitioner that, the said issue has been addressed
by the Government of Tamil Nadu in G.O.Ms.No.1499, Labour and
Employment (Q1) Department, dated 03.08.1989, wherein, the Government
has been enjoined to accommodate persons appointed on compassionate
ground depending upon the vacancy and qualification.
4. The Apex Court in a number of cases, has considered grant of
employment on compassionate ground. In a recent decision in the case of
M.Kendra Devi vs. The Government of Tamil Nadu in Civil Appeal
Nos.1918-1919 of 2022, the Apex Court, vide judgment dated 10.03.2022,
has held as under:
“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 this Court
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Writ Appeal No.496 of 2022
refrain to disturb the seniority list which has been
assigned to the respective compassionate appointees,
vis-a-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 of them and an individual although a
beneficiary was not at fault at any given point of time
either at the time of entry into service or thereafter.”
5. In yet another decision in the case of the Secretary to
Government, Department of Co-operation, Food and Consumer
Protection vs. A.Kingston David (Civil Appeal Nos.7655-7656 of 2021,
dated 11.12.2021), the Apex Court has considered the very same
Government Order in G.O.Ms.No.1499, Labour and Employment (Q1)
Department, dated 03.08.1989, and set aside the order of this Court by
holding that, the candidate cannot seek for appointment as Junior Assistant
from the date of initial appointment, even though, he was appointed as
Record Clerk. For better appreciation, relevant portion of the said judgment
is extracted hereunder:
“12. In this backdrop, the respondent took a
conscious decision to avail of a public appointment
on a compassionate basis by opting to secure an
appointment to the post of Record Clerk. Having
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Writ Appeal No.496 of 2022
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. The Division Bench
has ordered, in effect that though the Respondent
was appointed as a Record Clerk and served in that
capacity, the appointment should 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. The appellants
have been 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.
13. For the above reason, we are of the
view that the judgment of the Division Bench of
the High Court and the ultimate direction is
unsustainable. We accordingly allow the appeals
and set aside the impugned judgment and order of
the Division Bench of the High Court of Madras at
its Madurai Bench, dated 8 December 2016. The
Writ Petition file by the Respondent shall stand
dismissed. However, we clarify that this will have
no bearing on the promotion to which the
Respondent may be entitled to be considered or
which he may have been granted in the ordinary
course, independent of the impugned direction of
the High Court.”
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Writ Appeal No.496 of 2022
6. Compassionate appointment shall not be considered as a
backdoor entry and it is based on rules, regulations, guidelines and
Government Orders. However, it should be remembered that compassionate
appointment is not an usual recruitment process and the candidates seeking
such appointment will have to satisfy all the requirements contemplated
under the Rules with regard to age, qualification, etc, but however, it is
subject to relaxation depending upon the circumstances of each case.
7. In the case on hand, vide letter dated 03.07.2015, the Writ
Petitioner has given his written consent to the District Collector, Ariyalur, to
work as Office Assistant. That being the case, he cannot go back on his
undertaking and take a stand now that, he may be considered for
appointment as Junior Assistant.
8. Hence, we are of the view that, the order of the learned Single
Judge in directing the Respondents to give effect to G.O.Ms.No.1499,
Labour and Employment (Q1) Department, dated 03.08.1989 to the case of
the Writ Petitioner from the date of his initial appointment, cannot be
sustained in the light of the judgment of the Apex Court in the case of
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Writ Appeal No.496 of 2022
A.Kingston David (supra). In the said judgment, it has been held that, a
higher post cannot be claimed as a matter of right. Accordingly, the order
dated 06.09.2021 passed by the learned Single Judge in W.P.No.18651 of
2021 is set aside.
9. However, it is made clear that, if the Writ Petitioner possesses
higher educational qualification, the same has to be considered for
promotion to a higher post and that, disposal of this Writ Appeal will not
have any bearing on the promotion to which the Respondent/Writ Petitioner
may be entitled to be considered.
The Writ Appeal is allowed with the above direction and
observation. No costs. Consequently, connected C.M.P.No.3584 of 2022 is
closed.
[S.V.N.,J.] [N.M.,J.]
07.04.2022
Index : Yes/No
Speaking Order : Yes/No
(aeb)
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Writ Appeal No.496 of 2022
To:
1. The Secretary to Government,
State of Tamil Nadu,
Department of Commercial Taxes
and Registration, Fort St. George,
Chennai.
2. The Inspector General of Registration,
No.100, Santhome High Road,
Chennai 600 028.
3. The District Registrar (Administration),
Ariyalur Registration District,
Ariyalur.
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Writ Appeal No.496 of 2022
S.VAIDYANATHAN,J.
AND
N.MALA,J.
(aeb)
Judgment in
W.A.No.496 of 2022
07.04.2022
https://www.mhc.tn.gov.in/judis
