Summary
The Court rejected retrospective conversion of a compassionate appointment as Record Clerk into appointment as Junior Assistant. The qualified applicant had consciously accepted the available lower post and undertaken not to claim the higher post instead of waiting his seniority turn. The instruction to seek a suitable vacancy through the Collector did not authorise appointment without a vacancy. Retrospective conversion would prejudice other waiting or similarly appointed candidates. Independent promotion through the normal service channel remained unaffected.
Issues
- Whether an applicant who voluntarily accepted a lower compassionate post with an undertaking could demand retrospective appointment to a higher post.
- Whether the government instruction to seek vacancies through the Collector justified retrospective conversion.
Provisions considered
- G.O. Ms. No. 1499 dated 3 August 1989, paragraph 2(iii), Government of Tamil Nadu, Labour and Employment DepartmentThe direction to approach the Collector to ascertain a suitable vacancy did not create a vacancy or justify retrospective appointment contrary to the applicant’s conscious option. (¶¶ 7, 11-12)
Held
- Although qualified for Junior Assistant, the respondent faced the absence of a vacancy and his position in the waiting list. He chose appointment as Record Clerk and expressly undertook not to claim Junior Assistant. He was estopped on these facts from demanding that his accepted appointment be retrospectively converted. (¶ 11-12)
- The government instruction required approaching the Collector to ascertain a suitable vacancy; it did not enable appointment if none existed. The Division Bench could not rely on it to treat service actually performed as Record Clerk as service in the higher post. (¶¶ 7, 11)
- Retrospective appointment and consequential promotion from a post in which the respondent had never served would give an undeserved advantage over candidates who waited their turn and those who accepted lower posts. The direction was unsustainable even without back wages. (¶ 12)
- Dismissal of the writ petition did not affect eligibility for promotion or promotion already received through the ordinary service channel independently of the impugned directions. (¶ 13)
Result
Appeals allowed; Division Bench judgment set aside and writ petition dismissed. Independent consideration or grant of promotion in the ordinary course expressly preserved.