Writ Petition Nos. 32062 to 32064 of 2004. Case: M. Sivashanmugam and Ors. Vs The Government of Tamilnadu rep. by its Secretary, Highways Department Ors., [Alongwith Writ Petition Nos. 6457 and 6458 of 2005]. High Court of Madras (India)
| Case Number | Writ Petition Nos. 32062 to 32064 of 2004 |
| Counsel | For Appellant: Balan Haridas and N. Subramaniyan, Advs. And For Respondents: Lita Srinivasan, Govt. Adv., Cng. Ezhilarasi, Adv., R. Thiyagarajan, Adv. and M. Muthappan, Sr. Counsel, G. Venkateswaramurthy, Adv., G. Arulselvi, Adv., R. Sureshkumar, Adv. and R. Muthukannu, Adv., Lita Srinivasan, Govt. Adv., M. Muthappan, Sr. Counsel |
| Judges | T. Raja, J. |
| Issue | Tamil Nadu Highways Engineering Service Rules - Rule 17; Tamil Nadu Subordinate Service Rules - Rules 19(3), 35 and 48; Constitution of India - Articles 12, 14, 16, 16(1)(2), 16(2), 19, 21, 31C, 39, 226 and 309; Tamil Nadu Public Service Commission Regulations, 1954 - Regulation 16 |
| Judgement Date | July 15, 2011 |
| Court | High Court of Madras (India) |
Judgment:
T. Raja, J.
1. The present Petitioners/Degree Holders in Civil Engineering, who came to be appointed as Assistant Engineers in the Highways Department in different spells during 1991-92, 1993-95 and 1995-96 through the Tamil Nadu Public Service Commission (referred here in after as the 'Commission/TNPSC') after emerging successful in various Tests and Exams conducted by the Commission, have approached this Court invoking its jurisdiction under Article 226 of the Constitution of India through the above writ petitions which, in all, contain prayers in three dimensions:
(a) challenging the Government Orders in G.O. Ms. Nos. 155 and 156 dated16.07.1993 whereby compassionate appointments and regularisation of such appointments in respect of Respondents/compassionate appointees were allowed for Class-II Services in the Highways Department (vide prayer in WP Nos. 32063/04 and 6457/06);
(b) questioning the Seniority List published on 15.06.2004 and seeking a consequential direction to the official Respondents-1 to 4 to place the Petitioners above the Respondents-compassionate appointees (vide prayer in WP Nos. 32062 of 2004 and 6458 of 2006);and
(c) to declare the appointments of the Respondents/compassionate appointees as A Es in the Highways Department as illegal by holding that such appointments are contrary to the Highways Engineering Service Rules (as per the prayer in WP No. 32064 of 2004).
Inasmuch as all the three inter-connected writ petitions require a joint disposal on common issues, they are dealt with and decided so.
2. The brief facts leading to filing of the present petitions are mentioned below for better appreciation of the case and cause:
The Petitioners herein, in pursuant to the advertisements issued by the TNPSC in different spells during 1991-1995 for Direct Recruitment to the post of Assistant Engineers for Tamil Nadu Highway Engineering Service governed by the Special Rules framed under Article 309 of the Constitution of India, applied for the same and, after successfully passing through various levels of the Tests including preliminary examination, main examination and viva-voce, they came to be appointed as Assistant Engineers. The post in question being a 'Technical Post' under class-I I services, the entire process of selection was commenced and concluded by the Commission. While so, the Chief Engineer, High Ways Department, issued a 'Seniority List' in Memo No. 22369/Nirvagam 3 (4) 2004, dated15.06.2004, where-from, for the first time, the Petitioners came to know that a handful of persons were appointed to the post of Assistant Engineer by way of compassionate appointment even though there was no scheme for appointment by such course as the only mode for appointment for Class-II service is selection through the competitive exams conducted by the Commission, and that, deviating from the Rules and Procedure relating to selection, those compassionate appointees, whose appointment itself is illegal as it is contrary to the 'entry scheme' specified and provided in the Rules, were accommodated in the Seniority List to compete with the Petitioners, who joined the services after undergoing due process of selection as set by the Commission.
Inasmuch as the governing rules were framed under Article 309 of the Constitution and it has been clearly stipulated that the appointment to the post of A Es under Class-II shall only be by two modes i.e., either by direct recruitment or by transfer, the Petitioners made representations seeking clarification as to the status of the compassionate appointees and their legitimacy in competing with the Petitioners in the Seniority List, but, there was no response. The enquiries revealed that those Respondents were appointed on compassionate grounds on the demise of the Government Servant in harness and further, in some of the cases, at the time of appointment, the appointee did not even possess the requisite qualification/BE. The framework of G.O. Ms. Nos. 155 and 156, (L&E), dated16.07.1993 in providing compassionate appointment for class-II Services is illegal and such process can never be legally sustained much less under the Service Rules governing the Highways Engineering Services, there fore, those Government Orders cannot have any legal sanctity. The Petitioners gained knowledge about the illegal appointment only from the Seniority List dated15.06.2004 and in such case, the cause of action had arisen only on the said date. Since the request of the Petitioners to remove the names of compassionate appointees, who cannot lawfully stand to compete with them, from the Seniority List was not considered, the present petitions have been filed to declare the appointment of all the compassionate appointees who have been appointed to the posts falling under Class-II as illegal and to quash G.O. Nos. 155 and 156, dated16.07.1993, as well as the Seniority List dated15.06.2004 so that the Assistant Engineers, who were appointed through proper mode by the Commission, can compete for promotion on the basis of seniority amongst them.
3. Mr. Balan Haridas, learned Counsel appearing for the Petitioners in W.P. Nos. 32062 to 32064 of 2004and Mr. Subramanian, learned Counsel appearing for the Petitioners in WP Nos. 6457 and 6458 of 2005, while advancing lengthy arguments questioning the validity of the aforesaid G. Os. of the year 1993 and the Seniority List as well as the legality of the compassionate appointment given to the Respondents-compassionate appointees, made the following submissions:
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Until the publication of the Seniority List on 15.06.2004, the Petitioners were not aware of the compassionate appointment of the Respondents/A Es based on G.O. Ms. Nos. 155 and 156, in the year 1993. As soon as they became aware of such phenomenon, immediately, due representation was made to the Department questioning the legal status of those compassionate appointees to hold the post and their locus stand i to compete in terms of seniority with the Petitioners whose appointments were purely based on merits and ability assessed by the Commission. Therefore, when the Department did not respond to a serious issue, the Petitioners immediately approached this Court by way of present writ petitions and, at no stretch of imagination, slackness or laces can be attributed to the Petitioners in questioning the above referred G. Os. which are nothing but executive instructions. The ground of delay and laces cannot be argued by the Respondents particularly without specifically taking a plea in that regard, for, such plea is a mixed question of fact and law. At any rate, the Government Orders, which clearly violate Articles 14 and 16 of the Constitution of India, should be declared as illegal. To highlight the submission that the scheme of compassionate appointment should be made only in consonance with the yardstick outlined in Article 14 and 16 of the Constitution of India, the following observation of the Apex Court In State of Haryana and Ors. v. Rani Devi and another [AIR 1996 SC 2445] has been pressed into service:
It cannot be disputed that appointment on compassionate ground is anexception to the equality clause under Article 14 and can be upheld if such appointees can be held to form a class by them selves, otherwise any such appointment merely on the ground that the person concerned happens to be a dependant of an ex-employee of the State Government or the Central Government shall be violative of Articles 14 and 16of the Constitution. But this Court has held that if an employee dies while in service then according to rule framed by the Central Government or the State Government to appoint one of the dependants shall not be violative of Articles 14 and 16 of the Constitution because it is to mitigate the hard ship due to the death of the bread earner of the family and sudden misery faced by the members of the family of such employee who had served the Central Government or the State Government. It appears that this benefit has also been extended to the employees of the authorities which can be held to be a State within the meaning of Article 12 of the Constitution. But while framing any rule in respect of appointment on compassionate ground the authorities have to be conscious of the fact that this right which is being extended to a dependant of the deceased employee is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution. As such there should be a proper check and balance.
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Though compassionate appointment is the exclusive domain of the State which extends it to a family member of the deceased Government Servant to come out of the penurious situation and the crippling crisis that had arisen due to the sudden demise of the employee, the exercise to make such appointments is not routine in all cases and only in exceptional cases where the situation is such that grant of appointment is absolutely warranted, as otherwise, the family would sink down and collapse due to penury. Even in that situation, the compassionate appointment would be considered for class-III and IV irrespective of whatever high qualification the incumbent possesses. In other words, a person cannot be considered for compassionate appointment for those posts which ought to be filled up by open competition involving various levels of test to assess the merit and ability. If at all the State intended to extend compassionate appointment to the legal heirs of the deceased employees without exposure to any test or exam to assess their merit and ability, in law, they should have extended the benevolent gesture by posting them for Class-III and IV Services alone and not for Class-II Services for which the mode of selection is specifically provided in the Rules framed in terms of Article 309 of the Constitution. It is settled position of law that if executive instructions are contrary to statutory Rules, the Rules will prevail and not the executive...
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