# THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, FOOD AND CONSUMER PROTECTION AND OTHERS v. A KINGSTON DAVID

- **Citation:** [2021] 9 S.C.R. 733
- **Court:** Supreme Court of India
- **Decided:** 2021-12-11
- **Case number:** Civil Appeal Nos. 76557656 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-secretary-to-government-department-of-co-operation-food-and-consumer-35341
- **Pages:** 7

## Headnote

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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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.

## Text

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 [2021] 9 S.C.R. 733
733
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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[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. 76557656 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
specific year can be filled up on compassionate grounds. The post of
Junior Assistant falls within the purview of the Tamil Nadu Public Service
Commission. It has been stated that under the terms of the above
government order, the post can be filled up only by following a State
level seniority from the list of candidates awaiting appointment on
compassionate grounds. The respondent was at serial number 49 of this
list.
5. The qualification for the post of Junior Assistant is Secondary
School Leaving Certification. The qualification for the post of Record
Clerks was passing the 8th standard. At the time of appointment, the
respondent held a Bachelor's degree in Arts. On 27 March 2009, the
respondent was informed that appointments for the post of Junior Assistant
would be issued based on seniority. On 15 March 2010, he was requested
to opt whether he would willing to be appointed as a Record Clerk/
Office Assistant under the Registrar of Cooperative Societies. As there
was no vacancy in the post of Junior Assistant, the respondent furnished
an option letter dated 23 June 2010 accepting the post of Record Clerk
with an undertaking not to claim the post of Junior Assistant in the future.
In view of his undertaking and option, he joined as a Record Clerk in the
office of the Joint Registrar of Cooperative Societies, Sivagangai region
on 19 January 2011.
6. The respondent instituted a writ petition under Article 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 19 January
2011, the date of initial appointment and for subsequent promotions by
considering the service rendered in the cadre of Record Clerk. The
respondent also sought back wages and other monetary benefits. The
petition was dismissed by a Single Judge at the Madurai Bench of the
High Court on the ground that appointment on compassionate grounds is
not a matter of right. In a writ appeal, the Division Bench of the High
Court has reversed the judgment of the learned Single Judge.
7. The principal ground which has weighed with the Division Bench
of the High Court in reversing the judgment of the Single Judge is based
THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,
FOOD AND CONSUMER PROTECTION v. A KINGSTON DAVID
[DR. DHANANJAYA Y CHANDRACHUD J.]
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on GO Ms No 1499, issued by the Labour and Employment (Q1)
Department dated 3 August 1989. Paragraph 2 clause (iii) of the GO Ms
which has been extracted in the judgment of the High Court, reads as
follows:
"(iii) The appointing authorities under no circumstances should
appoint a dependent to a lower post when the dependent possesses
the qualifications required for the post of junior Assistant/Typist
on the ground of non availability of vacancy in the office or
department or the dependents not willing to work in other
departments. In such circumstances, they should follow the existing
procedure of approaching the Collector of the District concerned
for providing a suitable vacancy, as suggested in G.O. Ms.No.1179,
P & AR, dated 17.10.1979."
8. The Division Bench held that in terms of the above GO Ms, the
authorities ought to have followed the procedure of moving the competent
authority for sanctioning of a suitable vacancy in case of the unavailability
of a vacancy in the post of Junior Assistant/Typist. Hence, it came to the
conclusion that the appointment of the respondent as a Record Clerk
instead of as a Junior Assistant was due to the fault of the authorities. In
the circumstances, the writ appeal was disposed of by directing the
appellants to revive the appointment of the respondent to the post of
Junior Assistant with effect from the date of his original appointment to
the post of Record Clerk, and to provide subsequent promotions from
the cadre of Junior Assistant by considering the service rendered in the
cadre of Record Clerk as service rendered in the cadre of Junior
Assistant. However, no back wages have been granted on the ground
that it was in pursuance of his option letter and undertaking that the
respondent was appointed as a Record Clerk.
9. Mr Amit Anand Tiwari, learned counsel appearing on behalf of
the appellants has urged two submissions : firstly, it has been submitted
that GO Ms No 1499 dated 3 August 1989 will have no application in a
situation such as a present, where in view of the absence of suitable
vacancy in the post of Junior Assistant, the candidate seeking
compassionate appointment was appointed on the post of Record Clerk
at his request, on his letter of option and on an undertaking that he would
not claim the post of Junior Assistant in the future. Secondly, it has been
submitted that as a result of the directions of the High Court, the
respondent will steal a march over other candidates who like him would
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have been appointed to the post of Record Clerk on their request as well
as candidates who did not furnish such an undertaking but preferred to
wait in their turn of seniority for appointment to the post of Junior
Assistant.
10. On the other hand, Mr S Nagamuthu, learned senior counsel
appearing on behalf of the respondent submitted that:
(i)
The failure of the appellants to appoint the respondent to
the post of Junior Assistant arose because they did not follow
the procedure which was prescribed in GO Ms No 1499
dated 3 August 1989;
(ii)
If the procedure which was envisaged in the above GO Ms
was followed, it would have been possible for the Collector
to ascertain whether vacancies were available in any other
department;
(iii)
The respondent has, in fact, suffered as a consequence
since though his father who was in the Animal Husbandry
Department died on 29 March 2002, he was appointed only
in January 2011; and
(iv)
In any event, in 2019, the respondent has received promotion
as a Junior Assistant in the normal channel of promotion.
11. There is no dispute about the fact that though the respondent
was qualified for the post of Junior Assistant. Since there was no vacancy
in the post, the respondent 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. The State
has indicated in its pleadings that in terms of GO Ms 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
specified year can be filled up on compassionate grounds. The respondent
was ranked at serial number 49 in the seniority list for appointment. The
decision of accepting the post of Record Clerk was entirely at the option
of the respondent. Having accepted the post and being appointed on 19
January 2011 with an undertaking that he would not claim the post of
Junior Assistant, the respondent moved proceedings under Article 226
of the Constitution seeking appointment from the initial date as a Junior
Assistant. The learned Single Judge was justified in coming to the
conclusion that such a course of action was not open to the respondent,
THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,
FOOD AND CONSUMER PROTECTION v. A KINGSTON DAVID
[DR. DHANANJAYA Y CHANDRACHUD J.]
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having accepted the post of Record Clerk. He was plainly estopped
from doing so and could not have been appointed retrospectively to a
post in which he had never worked. This is exactly what the Division
Bench has directed. The Division Bench interfered with the judgment of
the Single Judge purely on the basis of GO Ms No 1499, Labour and
Employment Department (Q1) dated 3 August 1989. Paragraph 2 clause
(iii) which has been extracted earlier, indicates that appointing authorities
were directed not to appoint a dependent to a lower post when a dependent
possesses the qualifications required for Junior Assistant/Typist on the
ground of non-availability of vacancy or in the event that the dependent
is not willing to work in any other department. The above stipulation also
states that the Collector of the District should be approached for providing
a suitable vacancy as suggested in GO Ms No 1179 dated 17 October
1979. If at all, the above stipulation would indicate that the Collector
would have to be approached for ascertaining whether any other suitable
vacancy is available. If no vacancy was available, the respondent could
not have been appointed at all.
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 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
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of Madras at its Madurai Bench dated 8 December 2016. The writ
petition filed 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.
14. The appeals are disposed of in the above terms.
15. Pending applications, if any, stand disposed of.
THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION,
FOOD AND CONSUMER PROTECTION v. A KINGSTON DAVID
[DR. DHANANJAYA Y CHANDRACHUD J.]
Bibhuti Bhushan Bose
Appeals disposed of.