Direct recruits first: a compassionate appointee cannot climb above them on the strength of a joining date
Justices S.V.N. Bhatti and Shree Chandrashekhar modify a 2006 Madras High Court judgment, holding that compassionate appointment is an exception to Articles 14 and 16 and that an executive order under Article 162 can supplement the rules but cannot operate against them.
Between 1981 and 1984 three different kinds of people walked into the same cadre of Junior Assistants, Typists and Steno-typists in the Tamil Nadu Ministerial Service: some through a competitive examination held by the Public Service Commission, some as temporary hands drawn from the Employment Exchange while a recruitment ban was on, and some as the dependents of government servants who had died in harness. Forty years of litigation followed about who stood where. On 9 October 2026 a Division Bench of Justice S.V.N. Bhatti and Justice Shree Chandrashekhar decided it. The judgment, authored by Justice Chandrashekhar and marked reportable, holds that the direct recruits of the 1983 batch rank above both the other groups, and that as between the special appointees and the compassionate appointees the tie-breaker is the date of regularisation, not the date of first joining.
Three doors into one cadre
During 1981–83 the Government of Tamil Nadu banned the appointment of Junior Assistants and other ministerial staff. Temporary appointments were nevertheless made under Rule 10(a)(i) of the General Rules in Part II of the Tamil Nadu State and Subordinate Services Rules, 1955 — a provision for filling a vacancy immediately in the public interest where an emergency means regular appointment would be unduly delayed. M. Prema and thirteen others came in that way during 1981–84, drawn from the Employment Exchange.
In the meantime the Public Service Commission advertised five thousand Group IV posts and held a written examination on 27 November 1983. Results were published on different dates and appointments made during 1985–87; the successful candidates are the “direct recruits of the 1983 batch”.
The third group came in under Rule 48 of Part II, which empowers the Governor to deal with the case of any person or class of persons serving under the Government in such manner as may appear just and equitable. Two of them are parties here: one appointed on 5 August 1985 and the other on 25 November 1985, both as Junior Assistants on compassionate grounds, and both regularised by an order of 19 February 1987 with effect from their initial dates of appointment.
Three government orders then tried to arrange them. A G.O. of 14 September 1984, issued by order of the Governor, said the seniority of compassionate appointees in these posts would be placed among the Commission's candidates on the basis of the date of appointment. A G.O. of 22 September 1984 regularised the temporary Rule 10(a)(i) hands with effect from 26 June 1984, recording that orders on seniority would issue separately. Those came as the Special Absorption Rules, 1987, notified by G.O. Ms. No. 548 of 19 June 1987 under the proviso to Article 309, whose Clause 10 ranked a special appointee below the candidates selected on the November 1983 examination “irrespective of the date of appointment of these candidates”.
What the High Court did in 2006
By a common judgment of 3 April 2006 a Division Bench of the Madras High Court partly allowed a writ petition by the direct recruits, holding that they would be placed above the special appointees in the combined seniority list regardless of their date of joining. But it dismissed the State's petitions against the Tamil Nadu Administrative Tribunal, which had held that the two compassionate appointees ranked above the 1983 batch direct recruits appointed after them, and above the special appointees regularised in 1984. The High Court followed a 1987 writ decision, affirmed on appeal in 1988, which had laid down a method of interleaving the two lists by date and directed that where service fell to be computed on the same day, the compassionate appointee would be placed above the Commission candidate.
So the 2006 judgment pushed the special appointees to the bottom and lifted the compassionate appointees to the top. Everyone appealed. M. Prema and thirteen other special appointees came up against being ranked below the direct recruits; the direct recruits came up against the compassionate appointees being counted from their initial appointment; and three challenges to Clause 10 of the Special Absorption Rules, filed before the Tribunal in 2001 and later renumbered as writ petitions, were transferred to the Supreme Court and became transferred cases.
An executive order cannot operate against the rules
The Service Rules provide no standard formula for fixing the seniority of appointees who enter the same cadre through different sources, so inter se seniority had to be worked out from the applicable government orders. That is where the G.O. of 14 September 1984 ran into trouble.
Issued by order of the Governor, it is in the nature of an executive order under Article 162 of the Constitution. “An Executive Order can supplement the Rules and provide some method to achieve what has already been provided under the Rules but it cannot operate against the Rules.” And strictly speaking, the judgment holds, appointments on compassionate ground do not fall under any prescribed mode of appointment at all: Rule 6 of Part II prescribes only two methods of recruitment, direct recruitment or recruitment by transfer. Compassionate appointment is an exception to Articles 14 and 16, made under a scheme, with dependents generally appointed to Class III or Class IV posts depending on qualification and available vacancies. It is not a regular mode of selection, and those appointed under it cannot be put at par with direct recruits.
From that follows the core of the holding. A government employee appointed through a regular selection process has a legitimate expectation about seniority — both against those regularly appointed later and against those entering the cadre through other sources. “The persons who were selected through regular mode cannot be rendered junior by regularisation of temporary appointees at a later stage.” The compassionate appointees form a separate class and cannot be placed above the direct recruits on the basis of their initial date of appointment. Any other reading of the 1984 G.O. would cause injustice to the direct recruits.
Service begins at regularisation
The special appointees' case was the mirror image: that seniority should run from initial appointment once regularised, and that continuous service deserved recognition.
The rules answered it. Rule 2(1) of Part I says a person is appointed to a service if the appointment is in accordance with the rules, and is considered appointed on the date he first discharges the duties of a post borne on the cadre or commences prescribed probation, instruction or training. Rule 35(a) fixes seniority by the rank obtained in the list of approved candidates drawn up by the Commission; Clause (aa) fixes it by reference to the date of appointment to the service where recruitment is by more than one method. A Rule 10(a)(i) appointment is temporary by design: made against a temporary vacancy, terminable as soon as an approved candidate is available, and not to exceed one year. On the authority of State of Tamil Nadu v. E. Paripoornam, 1992 Supp (1) SCC 420, employees appointed under that rule cannot claim seniority in the cadre on the basis of temporary service before regularisation; and M.P. Palanisamy v. A. Krishnan, (2009) 6 SCC 428, holds that an ad hoc employee cannot claim seniority above a junior already in service even if he is the junior-most in the cadre. The special appointees, the Court held, did not come to the service until their regularisation.
Clause 10 of the Special Absorption Rules therefore survives, and for a reason specific to this case: the State explained that the direct recruits' appointments were delayed precisely because the temporary appointees were occupying the posts. The employer itself recognised that the direct recruits were not at fault in being kept waiting, and Clause 10 was its solution. An employer has the right to frame rules determining inter se seniority between classes of employees in a cadre and to devise its own methodology; such rules are not open to challenge on the ground that they could have been framed better, or that some hardship results to a class of employees. The special appointees had also never questioned Clause 3, which gives the Special Absorption Rules overriding effect, and were bound by the conditions of the 1987 G.O. It did not help that they waited some fourteen years before challenging Clause 10.
“Not with mathematical precision”
That left the question the High Court had never reached: as between the compassionate appointees and the special appointees, who ranks higher? The Court held it must be decided on the date of regularisation, as the criterion most suited to the situation — and framed the choice as one of method rather than arithmetic.
In every seniority-linked dispute some factor will weigh for or against one set of employees. A court is required to take a practical view and “should not involve itself in forensic examination of every little fact howsoever insignificant it may be”; an inter se seniority dispute between two sets of employees in the same cadre “need not be examined with mathematical precision”. Except where the recruitment rules are clear and supply a methodology, the norm of counting seniority from the date of regularisation of temporary, ad hoc or compassionate appointees should be followed to determine their inter se position.
On past service, the Court drew the line where the rules draw it. There are decisions granting a government employee the benefit of ad hoc or temporary service up to regularisation, but for pension purposes, in recognition of past service and generally where the rules so provide — State of Himachal Pradesh v. Sheela Devi and S.D. Jayaprakash v. Union of India are cited. That benefit cannot be converted into seniority over the direct recruits of the 1983 batch. The basic rule, from Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715, has continued unchanged: a direct recruit takes seniority from the date of appointment, while a temporary, ad hoc or stopgap appointee cannot claim it from initial appointment.
Order
The three transferred cases were dismissed. The two civil appeals by M. Prema and the other special appointees were disposed of with the direction on fixing their inter se seniority against the compassionate appointees by date of regularisation. The direct recruits' appeal was allowed to the extent that the two compassionate appointees shall not rank above the direct recruits of the 1983 batch, and the High Court's judgment of 3 April 2006 stands modified accordingly. There was no order as to costs.