The Supreme Court has held that compassionate appointees form a separate class and cannot be placed above direct recruits based on their initial date of appointment, since an Executive Order under Article 162 can supplement but cannot operate against the Service Rules. Reaffirming direct recruits’ seniority supremacy over compassionate and special appointees, the Apex Court has ruled that Direct Recruits of the 1983 batch shall rank above both Compassionate Appointees and Special Appointees in the combined seniority list of Junior Assistants, Typists and Steno-typists in the Tamil Nadu Ministerial Service.
The Apex Court clarified that compassionate appointment is an exception to Articles 14 and 16 of the Constitution and cannot be placed at par with direct recruits on the basis of initial date of appointment. Further, special/temporary appointees appointed under Rule 10(a)(i) and later regularised cannot claim seniority over direct recruits based on their earlier temporary service, except for pension purposes. The Court also said that Clause 10 of the Special Absorption Rules, 1987, which places special appointees below TNPSC selectees irrespective of date of appointment, is valid and has overriding effect under Clause 3.
Briefly, the appeals before the Supreme Court involved an inter se seniority dispute between three categories of appointees to the posts of Junior Assistants, Typists, and Steno-typists in the Tamil Nadu Ministerial Service, namely, (i) Direct recruits selected through the Tamil Nadu Public Service Commission (TNPSC) competitive examination held in November 1983 and appointed during 1985-87, (ii) Special appointees appointed on a temporary basis under Rule 10(a)(i) of the General Rules under Part II of the Tamil Nadu State and Subordinate Services Rules, 1955 (TN Service Rules) during 1981-84 and later regularised with effect from 26th June 1984, and (iii) Compassionate appointees appointed under Rule 48 of the TN Service Rules and regularised by an order dated 19th February 1987 with effect from their initial date of appointment.
The Direct recruits and Special appointees claimed seniority over each other, and both claimed a higher position above the Compassionate appointees. By a common judgment dated 3rd April 2006 in W.P. No. 21654 of 2004 with W.P. Nos. 3822 and 3823 of 2006, the Division Bench of the Madras High Court partly allowed the writ petition filed by the Direct recruits and held that the Direct recruits, irrespective of their date of joining, shall be placed above the Special appointees in the combined seniority list, and that the Compassionate appointees shall be placed above the Direct recruits on the basis of their date of appointment.
Aggrieved by the said decision, M. Prema and 13 other Special appointees approached the Supreme Court, while the Direct recruits represented through H. Nagarajan and 9 others challenged the part of the impugned judgment holding that the Compassionate appointees shall rank above the Direct recruits on the basis of their initial date of appointment.
A Two-Judge Bench comprising Justice Shree Chandrashekhar and Justice S.V.N. Bhatti observed that Rule 6 under Part II of the TN Service Rules prescribes only two methods of recruitment, namely, by direct recruitment or recruitment by transfer, and that appointment on compassionate ground is an exception to Articles 14 and 16 of the Constitution of India. The Compassionate appointees form a separate class and cannot be put at par with the Direct recruits, since they are appointed on a temporary basis and then regularised in service after taking the concurrence of the Commission.
The Court further observed that the Special appointees were appointed between 1981 and 1984 on temporary vacancies by drawing names from the Employment Exchange, and their services were regularised with effect from 26th June 1984 under G.O. dated 22nd September 1984. Their seniority was thereafter fixed under Clause 10 of the Special Absorption Rules, 1987, notified through G.O. Ms. No. 548 dated 19th June 1987, which provided that the Special appointees shall rank below the candidates selected by the TNPSC on the basis of the competitive examination held in November 1983, irrespective of the date of appointment of such candidates.
The Court noted that the delay in the appointment of the Direct recruits was adequately explained by the State, since the temporary appointees had occupied the posts, and that the State Government itself recognised that there was no fault on the part of the Direct recruits if they were kept waiting and not appointed in time. The Court also noted that Clause 3 of the Special Absorption Rules gives them overriding effect over any repugnant corresponding provision under the General Rules, Special Rules, Fundamental Rules or Tamil Nadu Leave Rules, and the Special appointees have not questioned Clause 3.
The Court further observed that the G.O. dated 14th September 1984, which provided that the seniority of Compassionate appointees shall be placed among the Direct recruits on the basis of their date of appointment, is in the nature of an Executive Order under Article 162 of the Constitution, and an Executive Order can supplement the Rules but cannot operate against the Rules.
