2026 INSC 1105 Page 1 of 22

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8757 OF 2013

M. PREMA …Appellant(s)

Vs.

THE STATE OF TAMIL NADU REP

BY ITS SECRETARY TO THE GOVERNMENT

AND ORS. …Respondent(s)

WITH

CIVIL APPEAL NO.8755/2013

H. NAGARAJAN & ORS. …Appellant(s)

Vs.

STATE OF T.N. & ORS. …Respondent(s)

CIVIL APPEAL NO.8756/2013

R. KANTHIMATHI & ORS. …Appellant(s)

Vs.

STATE OF TAMIL NADU & ORS. …Respondent(s)

T.C.(C) NO. 50/2013

M. PREMA …Applicant(s)

Vs.

THE SECRETARY TO GOVERNMENT, HOME

DEPARTMENT, CHENNAI AND ORS. …Respondent(s)

Page 2 of 22

T.C.(C) NO. 51/2013

R. KANTHIMATHI …Applicant(s)

Vs.

THE SECRETARY TO GOVERNMENT, HOME

DEPARTMENT, CHENNAI AND ORS. …Respondent(s)

AND

T.C.(C) NO. 52/2013

A. GOVINDARAJAN …Applicant(s)

Vs.

THE SECRETARY TO GOVERNMENT, HOME

DEPARTMENT, CHENNAI AND ORS. …Respondent(s)

J U D G M E N T

SHREE CHANDRASHEKHAR, J.

These Civil Appeals and Transferred Cases involve inter se seniority

dispute between different category of appointees. The Direct recruits and

Special appointees are claiming seniority over each other and together both

claim higher position in the seniority list above the Compassionate

appointees. The Direct recruits and Special appointees have challenged the

decision of the Division Bench of the High Court of Judicature at Madras

delivered in W.P. No. 21654 of 2004 with W.P. Nos. 3822 and 3823 of 2006.

2. By a common judgment dated 3

rd April 2006, the Division Bench of

the High Court partly allowed W.P. No. 21654 of 2004 filed by the Direct

recruits and held that the Direct recruits irrespective of their date of joining

Page 3 of 22

shall be placed above the Special appointees in the combined seniority list.

However, W.P. Nos. 3822 and 3823 of 2006 filed by the Government of Tamil

Nadu against the decision of the Tamil Nadu Administrative Tribunal in O.A.

Nos. 3317 of 1992 and 5691 of 1993 were dismissed. The decision of the

Tribunal was to the effect that the seniority of the Compassionate

appointees, namely, S. Prem Kumar and T.A. Kannappa shall be reckoned

above the Direct recruits of 1983 batch who were appointed after them and

the Special appointees who were regularised in service with effect from

25

th June 1984.

3. The facts of this case are not complex and are briefly stated thus:

3.1 During 1981-83, the Government of Tamil Nadu imposed a ban

on the appointment of Junior Assistants and other Ministerial staff.

However, temporary appointments were made under Rule 10(a)(i) of the

“General Rules” which fall under Part II of the Tamil Nadu State and

Subordinate Services Rules, 1955 (in short, TN Service Rules).

3.2 M. Prema and 13 other persons were appointed under Rule

10(a)(i) during 1981-84. In the meantime, the Tamil Nadu Public

Service Commission (in short, Commission) issued an advertisement

for appointment on Five thousand posts of Group IV employees

through competitive examination which was conducted on

27

th November 1983. The result of the said written examination was

published on different dates and the appointments were made during

1985-87. The selected candidates of this recruitment exercise are

commonly identified as Direct recruits of 1983 Batch.

3.3 Around the year 1984, the Government of Tamil Nadu took a

decision to regularise the services of the Junior Assistants, Typists

and Steno-typists, who were appointed on compassionate grounds.

Page 4 of 22

Subsequently, G.O. dated 14

th

September 1984 was issued by the

order of the Governor under which the Compassionate appointees were

placed in the seniority list of Direct recruits as per their date of

appointment.

3.4 The Special appointees like M. Prema, R. Kanthimathi etc. were

regularised in service with effect from 26

th

June 1984 vide G.O. dated

22

nd September 1984. However, their seniority etc. have been fixed

under Clause 10 of the Special Absorption Rules, 1987 which were

published through G.O. dated 19

th June 1987.

3.5 M. Prema, who was appointed on 1

st

December 1983 as Junior

Assistant / Typist, continuously worked as a Junior Assistant / Typist

and absorbed in service with effect from 26

th June 1984. She was

aggrieved by the provisional seniority list of Assistants / Typists

published under the authority of the Director General of Police wherein

she was placed below the Direct recruits. She approached the Tamil

Nadu Administrative Tribunal, Chennai Bench, in O.A. No. 4656 of

2001 seeking quashing of Clause 10 of the Special Absorption Rules.

While O.A. No. 4656 of 2001 filed by her was pending consideration

before the Tribunal, a bunch of Direct recruits approached the High

Court in W.P. No. 21654 of 2004 claiming seniority over the

Compassionate appointees, Special appointees and other class of

employees.

3.6 To complete the factual matrix of the case, we indicate that the

validity of Clause 10 of the Special Absorption Rules was challenged

by the Special appointees in O.A. Nos. 4656 of 2001, 4657 of 2001 and

5304 of 2001 before the Tamil Nadu Administrative Tribunal which

were transferred to the High Court upon abolition of the Tribunal and

re-numbered as W.P. Nos. 3701 of 2007, 3702 of 2007 and 3565 of

2007. Pursuant to an order of this Court dated 10

th

November 2010,

these cases have been transferred to this Court and re-numbered as

Transferred Case (C) Nos. 50 of 2013, 51 of 2013 and 52 of 2013.

Page 5 of 22

4. In the aforesaid background, the Division Bench of the High Court

rendered the impugned decision which has affected the seniority of Direct

recruits and Special appointees vis-à-vis Compassionate appointees. The

Division Bench extensively referred to a previous order passed in W.P. No.

7730 of 1987 which was filed by 23 Compassionate appointees to challenge

their ouster from service by an order dated 11

th July 1987 while retaining

157 Special appointees on the ground that those Compassionate appointees

were junior-most and below the Special appointees and the Direct recruits.

This writ petition was allowed with a direction to prepare a seniority list in

which a Direct recruit shall be placed below the Compassionate appointee

if both had come in service together. The writ Court had issued the following

directions:

“9. To work out the inter se seniority for the concerned year, the procedure to

be followed is as follows:-

1. All those who have taken up appointments in the concerned year through

Commission have to be listed according to the dates on which they joined duty

i.e., when they discharged the duty in the post for the first time.

2. Another list of all those who have been appointed on compassionate grounds

in that year with their respective dates of regularisation of service to be

prepared.

3. Taking each name in the Commission candidates’ list, he or she will have

to be fitted in the list of candidates appointed on compassionate grounds,

immediately below or preceding date on which the candidates appointed on

compassionate grounds had been regularized.

4. In such of those cases where on the same day, the service is to be computed,

then the candidate appointed on compassionate grounds will be placed above

the Commission candidate.

10. In the combined seniority list of personnel drawn from three sources, these

two sources will be included in the beginning in this order, and thereafter all

the candidates appointed under Absorption Rules will be ranked below.”

5. W.A. No. 787 of 1988 titled “The State of Tamil Nadu & Ors. v. M. Albert

Rosario & Ors.” was dismissed by the Division Bench by an order dated

Page 6 of 22

27

th

September 1988 and the aforesaid order passed by the writ Court in

W.P. No. 7730 of 1987 has been affirmed observing as under:

“2. The 157 persons having been absorbed under the Special Absorption Rules,

the rule of seniority set out in rule 10 of the Special Absorption Rules alone must

govern and if it so governs, the petitioners, who are appointed in accordance with

the special rules, must have their seniority placed above the 157 persons. Apart

from the other reasons, expressed by the learned single Judge, in countenancing

the grievances of the petitioners, with which we agreed, in our view the above

feature by itself convincingly supports the case of the petitioners. We are not

persuaded to interfere in Writ Appeal and accordingly the Writ Appeal fails and

the same is dismissed. We make no order as to costs.”

6. After noting the decisions in W.P. No. 7730 of 1987 and W.A. No. 787

of 1988 and Clause 10 of the Special Absorption Rules, the Division Bench

delivered the impugned judgment dated 3

rd

April 2006 holding as under:

“10. The main contention raised by the counsel for the State Government in

W.P. Nos. 3822 and 3823 of 2006 is to the effect that the candidates selected

through Tamil Nadu Public Service Commission must be ranked above those

appointed under Special Rules, which would also include any appointment on

compassionate ground, as evident from Rule 10 of G.O.Ms.No.548 dated

19.6.1987.

11. After going through the provisions contained in the said G.O., and

particularly keeping in view the interpretation given by the learned Single Judge

which has been specifically approved by the Division Bench, which has become

final, we are unable to accept the contention raised by the learned counsel

appearing for the State Government. As rightly observed by the learned Single

Judge, G.O. Ms.No.548 does not deal with the question of seniority of those

appointed on compassionate ground. It only refers to question of seniority between

General Rules 10(a)(i) appointees and regular appointees who had been selected

through Tamil Nadu Public Service Commission in the examination held in

November, 1983. As per such Rules under Article 309 of the Constitution of India,

the seniority of the appointees under General Rules 10(a)(i) who had been

subsequently regularized, had been depressed and kept below the last candidate

selected on the basis of November, 1983 examination. Since the validity of such

rule has not been challenged, as per such rules it is apparent that General Rules

10(a)(i) candidates have to be ranked below the candidates who have been selected

as per the examination held in November, 1983. In such rule, however, nowhere

it is indicated that the seniority of the TNPSC candidate has to be advanced to the

year of examination that is to say 1983. It is also nowhere indicated that such

persons shall be deemed to have been appointed in 1983.

12. It is, therefore, obvious that the seniority of a person appointed on the

basis of November, 1983 examination, has to be fixed on the basis of the date of

Page 7 of 22

substantive appointment and not on the basis of the date of the examination. As

a matter of fact, this aspect has been very elaborately clarified by Justice

Sathiadev, in the decision dated 8.4.1988, which has been specifically approved

by the Division Bench. Hence, we are not inclined to take any different view of the

matter. In view of the direction clearly indicated in paragraph 9 of the judgement

of the learned Single Judge, which has been specifically approved by the Division

Bench, it is apparent that the question of seniority of the person appointed

through (illegible) compassionate grounds has to be fixed on the basis of the date

of appointment.

13. So far as General Rules 10(a)(i) candidates are concerned, obviously such

candidates have to be ranked below the TNPSC candidates irrespective of the date

of appointment of such TNPSC candidates and the Special Absorption Rules

candidates. In other words, 10(a)(i) appointees have to be ranked below the last

TNPSC candidate selected on the basis of the examination held in November,

1983. Since the validity of such rules has not at all been challenged, the General

Rules 10(a)(i) candidates are deemed to be below all candidates selected on the

basis of November, 1983 examination held by the TNPSC.

14. For the aforesaid reason, the writ petition Nos. 3822 and 3823 of 2006 filed

by the Government, are dismissed. Writ petition No. 21654 of 2004 is partly

allowed, and it is directed that the candidates selected by the TNPSC on the basis

of the examination held in November, 1983, shall rank above General Rules

10(a)(i) candidates; but, so far as compassionate appointees are concerned, the

inter se rank of the compassionate appointees and TNPSC candidates shall

depend according to the date of their initial appointment, as has been held in

paragraph 9 of the judgment in W.P. No. 7730/87 and W.A. No. 787/88. No costs.

Consequently, connected WPMPs are closed.”

7. Aggrieved by the decision of the Division Bench that the Direct

recruits shall rank above the Special appointees, M. Prema came to this

Court in SLP (C) No. 12169 of 2007, now converted into Civil Appeal No.

8757 of 2013. She had also filed a Review Petition before the High Court

seeking review of the judgment dated 3

rd April 2006 on the ground that she

was not made a party before the Division Bench of the High Court and the

pendency of O.A. No. 4656 of 2001 was not disclosed to the Division Bench.

The said Review Petition has since been withdrawn by her, as reflected in

the order dated 10

th July 2007 passed by this Court.

Page 8 of 22

8. Civil Appeal No. 8756 of 2013

1

has been filed by 13 Special appointees

who are also aggrieved as M. Prema, inasmuch as, the Special appointees

shall now rank below the Direct recruits and also below the Compassionate

appointees in the combined seniority list of Junior Assistant / Typist,

Steno-typist etc.

9. In Civil Appeal No. 8755 of 2013

2, the Direct recruits represented

through H. Nagarajan and 9 other such appointees have also laid a

challenge to the impugned decision of the Division Bench to the extent it

holds that inter se seniority of the Compassionate appointees with the Direct

recruits shall be counted from the date of their initial appointment.

10. There are two Compassionate appointees who are involved in this

inter se seniority dispute. S. Prem Kumar was appointed on 25

th

November

1985 and T.A. Kannappa was appointed on 5

th

August 1985, both as Junior

Assistants on compassionate grounds under Rule 48 under Part II of the TN

Service Rules. They were regularised in service by an order dated

19

th February 1987 with effect from their initial date of appointment. They

claim that they are Direct recruits within the meaning of Rule 2(14) of the

TN Service Rules and they are not temporary appointees. The learned

counsel for the Compassionate appointees relied on G.O. dated

14

th

September 1984 which provided that the seniority of such appointees

1

Civil Appeal No. 8756 of 2013 corresponding to Special Leave Petition(C) No. 5772 of 2007 arising out

of W.P. No. 21654 of 2004 titled “H. Nagarajan and Ors. v. The State of Tamil Nadu and Ors.” dated 3

rd

April 2006

2

Civil Appeal No. 8755 of 2013 corresponding to Special Leave Petition(C) No. 19902 of 2006 arising out

of W.P. No. 21654 of 2004 titled “H. Nagarajan and Ors. v. The State of Tamil Nadu and Ors.” dated 3

rd

April 2006

Page 9 of 22

shall be determined on the basis of their date of appointment and they shall

be placed in the seniority list among the Direct recruits. The learned counsel

further contended that G.O. dated 14

th September 1984 was not challenged

by the Direct recruits or by the Special appointees and, as a consequence

thereof, the Compassionate appointees must rank above in seniority to the

Direct recruits who were appointed after them. The parties have elaborated

upon the effect of G.O. (Standing) No.951 dated 14

th September 1984, which

is reproduced below:

“Tamil Nadu Ministerial Service - Appointment (Direct) - Appointed on the

basis of Compassionate or Clemency Grounds - Fixing of Seniority

Personnel and Administrative Reforms (Personnel - B) Department

G.O. (Standing) No.951 Dated : 14.09.1984

Read : -

Tamil Nadu Public Service Commission

Letter No.4911/E2/84 dated 27.06.1984.

ORDER : - *****

An eligible family member of the Government servant, who died while in service,

may be appointed in Government service on compassionate grounds. The person

who is appointed on such grounds, may be given posting on the basis of

educational qualification. On compassionate grounds, many persons have been

appointed as Junior Assistants, Typists, Steno-Typists and other such posts in

Tamil Nadu Ministerial Service. They have been taken in service in the said posts

on temporary basis first and thereafter their services would be regularized after

getting concurrence of the Tamil Nadu Public Service Commission. The seniority

of the persons who are recruited on the above basis in Junior Assistants, Typists,

Steno-Typists and other such posts, has been fixed below the Tamil Nadu Public

Service Commission candidates of the particular year. But, there is no provision

for this in Tamil Nadu Ministerial Staff Special Rules. It was considered to place

the seniority of the candidates appointed on compassionate grounds in between

the candidates appointed through Tamil Nadu Public Service Commission on the

basis of their date of joining.

In the Govt Order (Standing) No.958 of the Personnel and Administrative Reforms

(Personnel -I) Department, dated 7-10-1983 it has been ordered that the seniority

of Junior Assistants who are recruited on compassionate grounds in the

Secretariat may be fixed among the candidates appointed through Tamil Nadu

Public Service Commission on the basis of their date of joining. Likewise, it is

Page 10 of 22

considered that the same concession may be given to Junior Assistants, Typists,

Steno-Typists and other related posts in Tamil Nadu Ministerial Service. Tamil

Nadu Public Service Commission has also given approval for this proposal in the

reference cited.

3. Hence, it is ordered that the seniority date of Junior Assistants, Typists,

Steno-typists and other such posts may be placed among the seniority of the

candidates appointed through Tamil Nadu Public Service Commission on the

basis of the date of appointment. This is not applicable to those who had already

been appointed.

4. This order will come into effect on the date of publishing of the order.

(By the order of the Governor)

K.Chokkalingam,

Chief Secretary to Government.”

11. The Direct recruits contend that the back-door appointees cannot

steal a march over them and the Compassionate appointees cannot be put

above them in the seniority list. Mr. V. Prabhakar, the learned senior

counsel appearing for the Direct recruits referred to the decision in

“K. Madalaimuthu & Anr. v. State of T.N. & Ors”

3

and contended that the

Direct recruits must be held senior to those who came in the cadre of Junior

Assistants, Typists or Steno-typists through other modes of selection.

12. The State respondents have also taken a stand that the

Compassionate appointees cannot claim seniority over the Direct recruits

for the reason that they were not selected through the competitive

examination and their appointment was by way of an exception to Articles

14 and 16 of the Constitution of India. They have referred to an order dated

2

nd March 1993 passed in O.A. No. 4176 of 1992 filed by Thiru. S.

Ramajayem who was appointed as a Junior Assistant on compassionate

ground. The Tribunal in its order dated 2

nd

March 1993 has held that the

3 K. Madalaimuthu & Anr. v. State of T.N. & Ors : (2006) 6 SCC 558

Page 11 of 22

Compassionate appointee like him cannot seek seniority above the Direct

recruits of 1983 batch. According to the State respondents, the order passed

in O.A. No. 4176 of 1992 has become final and shall govern the seniority of

Compassionate appointees vis-à-vis Direct recruits.

13. The TN Service Rules do not provide any standard formula to fix

seniority of a regularly appointed Government employee vis-à-vis other

appointees who came in the same cadre through different sources.

Therefore, their inter se seniority has to be determined as per the applicable

Government Orders and Circulars. The Compassionate appointees were

appointed under Rule 48 of the TN Service Rules which vests power in the

Governor to deal with the case of any person or the class of persons serving

in a civil capacity under the Government of Tamil Nadu for appointment to

a service in such manner as may appear to be just and equitable. The

Government of Tamil Nadu came out with G.O. dated 14

th September 1984

which was issued by the order of the Governor and refers to the

Compassionate appointees like S. Prem Kumar and T.A. Kannappa who

were taken in service on temporary basis. Under this Government Order, a

decision was taken to fix seniority of the Compassionate appointees holding

the post of Junior Assistant, Typist or Steno-typist and other persons

holding such posts among the seniority of the Direct recruits on the basis

of their date of appointment.

14. The G.O. dated 14

th

September 1984 issued by the order of Governor

is in the nature of an Executive Order under Article 162 of the Constitution

of India. An Executive Order can supplement the Rules and provide some

Page 12 of 22

method to achieve what has already been provided under the Rules but it

cannot operate against the Rules. Strictly speaking, the appointments made

on compassionate ground do not fall under any prescribed mode of

appointment. Rule 6 under Part II of the TN Service Rules prescribes for

only two methods of recruitment, namely, by direct recruitment or

recruitment by transfer. Moreover, the appointment on compassionate

ground is an exception to Articles 14 and 16 of the Constitution of India.

The compassionate appointments are made under a scheme and the

dependents of the former employee who died in harness are generally

appointed on Class III or Class IV posts depending on their qualification

and available vacancies. This is not a regular mode of selection and the

Compassionate appointees cannot be put at par with the Direct recruits.

The Compassionate appointees form a separate class and they cannot be

put above the Direct recruits on the basis of their initial date of

appointment. They were appointed on temporary basis and then regularised

in service after taking concurrence of the Commission. A Government

employee who is appointed through a regular selection process has a

legitimate expectation to seniority inter se with the employees who are

appointed through regular mode in the subsequent transaction as also with

other appointees coming into the cadre through different sources. The

persons who were selected through regular mode cannot be rendered junior

by regularisation of temporary appointees at a later stage. Therefore, we

hold that the Compassionate appointees who are the respondents in these

Civil Appeals shall rank below the Direct recruits of 1983 batch. In the

Page 13 of 22

circumstances of the case, any other interpretation of the seniority rule

envisaged under G.O. dated 14

th

September 1984 would cause injustice to

the Direct recruits.

15. According to the Special appointees under Rule 10(a)(i), they are also

entitled to get their seniority from the date of initial appointment once they

are regularised in service. Mr. R. Subramanian, the learned senior counsel

for the Special appointees emphasised that the normal rule is that the

seniority of a Government servant should be counted from the date of his

initial appointment and not from the date of his absorption or

regularisation. The learned senior counsel further contended that

continuous service rendered by the Special appointees ought to receive due

recognition in fixing their seniority vis-à-vis the Direct recruits.

16. The Special appointees were appointed between 1981 to 1984 on

temporary vacancies by drawing names from the Employment Exchange.

Later, a ban was imposed by the Government on temporary appointment by

drawing names from the Employment Exchange, with effect from 25

th June

1984. The Government, therefore, decided to regularise their services and

G.O. dated 22

nd September 1984 was issued for regularising the services of

all temporary Junior Assistant, Typist or Steno-typist in the Tamil Nadu

Ministerial Service or Tamil Nadu Judicial Ministerial Service and all Typists

and Steno-typists in the Tamil Nadu Secretariat Services with effect from

26

th

June 1984. It is clearly mentioned in this Government Order that the

seniority of such Special appointees shall be fixed separately and for that

purpose the Rules framed under Proviso to Article 309 of the Constitution

Page 14 of 22

of India were notified through G.O. Ms. No. 548 dated 19

th

June 1987. These

Rules are called the Special Absorption Rules, 1987 and came into force on

25

th June 1984 and are made applicable to all candidates appointed

through special absorption with effect from 25

th June 1984. The

regularisation order issued through G.O. dated 22

nd September 1984 had

contained the following conditions:

“5. The services of all the temporary personnel in the (illegible) of Junior Assistant,

Typist and Steno Typist in the Tamil Nadu Ministerial Service / Tamil Nadu Judicial

Ministerial Service and Typist and Steno Typist in the Tamil Nadu Secretariat Service

recruited through Employment Exchange under General Rule 10(a)(i) and who were in

temporary service as on 25.6.84 be regularised with effect from 26.6.1984 in the same

category and in the Department in which they were working.

6. Orders regarding fixation of seniority, age, educational qualification, pay, leave etc.

will be issued separately.”

17. Part II of the TN Service Rules contains the “General Rules” which

govern all State and Subordinate Services and apply to the holders of all

posts whether temporary or permanent. Rule 10(a)(i) of the General Rules

under Part II deals with “Temporary Appointments” and contemplates

immediate filling of a vacancy in a post borne on the cadre of a service, class

or category if it is necessary in the public interest and such necessity is

arising out of an emergency and on account of the fact that there shall be

undue delay in making such appointment in accordance with these Rules

and the Special Rules. Such appointments are temporary in nature and

made of a person who possesses the qualifications prescribed for the post.

However, first Proviso to Rule 10(a)(i) puts a restriction on direct

recruitment to the extent that any person to be appointed under this Rule

must be sponsored by the Commission from its regular or reserve list of

Page 15 of 22

successful candidates. Clause (a)(iii) of Rule 10 indicates that the temporary

appointment made under Rule 10(a)(i) shall be terminated and the

appointees shall be replaced as soon as possible by a member of a service

or an approved candidate qualified to hold the post under the Rules.

Furthermore, the appointment under Rule 10(a)(i) can be made strictly for

a period not exceeding one year from the date of temporary appointment.

18. Quite clearly, the appointment of the Special appointees was

temporary in nature and against the temporary vacancies. They did not face

the competitive examination and came to the cadre of Junior Assistant /

Typist by virtue of the order of regularisation vide G.O. Ms. No. 996 dated

22

nd

September 1984. Under Clause 7 of the Special Absorption Rules, it is

provided that the Special appointees whose services have been regularised

with effect from 1984 shall be on probation for a total period of two years

within a continuous period of three years. Under Clause 9, they are also

required to pass such test or undergo such training before the expiry of two

years’ period, failing which their increments shall be stopped for two years

without cumulative effect. It is further provided under Clause 9 that their

services shall be terminated if they fail to pass such test or to undergo such

training even by the end of fourth year of the service. M. Prema was

appointed on 1

st December 1983 as Junior Assistant under Rule 10(a)(i) of

the TN Service Rules and she completed her probation on 24

th

June 1986.

R. Kanthimathi and A. Govindarajan were also appointed under Rule 10(a)(i)

during 1981-82 and then regularised in service. For about 14 years, they

did not challenge the Special Absorption Rules under which inter se

Page 16 of 22

seniority between the Direct recruits and the Special appointees was fixed

and they approached the Tribunal in the year 2001 to challenge Clause 10

of the Special Absorption Rules, which provided as under:

“10. Seniority: - The seniority of a candidate appointed through Special Absorption,

in 1984, shall be fixed with reference to the date of first temporary appointment in

the departmental unit in which he had been absorbed irrespective of whether he had

been subsequently discharged for want of vacancies or appointed again through the

Employment Exchange in that departmental unit, and not with reference to the date

of first appointment in any other departmental unit where he had acted previously

before his absorption in the particulars departmental unit. He shall be ranked below

the candidates selected by the Tamil Nadu Public Service Commission on the results

of the competitive examination held in November, 1983 irrespective of the date of

appointment of these candidates. If more than one candidate is appointed on the

same day their seniority shall be fixed with reference to the age as laid down in sub-

rule (a) of rule 35 of the General Rules. The rule of reservation (General Rule 22) shall

not apply to these candidates.

Provided that if any person is appointed to the post of Jr. Assistant / Typists /

Steno - Typists in accordance with the Special Rules the seniority of such person

shall be placed above the candidates appointed through Special Absorption in 1984.

Provided also that if any of the persons appointed to the posts of Junior Assistant

/ Typist / Steno - Typist in accordance with the Special Absorption Rules, 1987 and

whose services were regularized in one department on 25.6.84 and reallotted to a

new department for want of vacancy through the Tamil Nadu Public Service

Commission shall take his seniority in the new department from the date of his

temporary appointment in the department from which he was reallotted.”

19. At this juncture, it is necessary to note that Rule 2(1) under Part I of

the TN Service Rules provides that a person is “appointed to a service” if his

appointment is in accordance with these Rules or any other Rules

applicable at that time. Such a person shall be considered to be appointed

to a service on the date when he discharges for the first time the duties of a

post borne on the cadre of such service or commences the probation,

instruction or training as may be prescribed for the members thereof. Rule

35(a) under Part II is another important provision in the TN Service Rules

which needs to be applied to resolve the present inter se seniority dispute.

Page 17 of 22

It provides that the seniority of a person in a service, class, category or grade

shall be determined by the rank obtained by him in the list of approved

candidates drawn up by the Commission or any other Appointing Authority

as the case may be. Clause (aa) provides that the seniority of a person in a

service, class, category or grade shall be determined with reference to the

date on which he is appointed to the service, class, category or grade where

the normal method of recruitment to that service, class, category or grade

is by more than one method of recruitment.

20. Having regard to the above rule position, it must be held that the

Special appointees did not come to the service till their regularisation in

service. In “State of Tamil Nadu & Anr. v. E. Paripoornam & Ors.”

4

this Court

held that Rule 10(a)(i) provides for making of temporary appointments

which are made otherwise than in accordance with the procedure

prescribed under the rules. This Court further held that the employees

appointed under Rule 10(a)(i) of the TN Service Rules cannot claim seniority

in the cadre on the basis of their temporary service prior to regularisation.

Rule 10(a)(i) of the TN Service Rules came again for consideration before

this Court in “M.P. Palanisamy & Ors. v. A. Krishnan & Ors.”

5 wherein it has

been held that an ad hoc employee cannot claim seniority above a junior

person already in service even if he is the junior-most person in the cadre.

4

State of Tamil Nadu & Anr. v. E. Paripoornam & Ors. : 1992 Supp (1) SCC 420

5

M.P. Palanisamy & Ors. v. A. Krishnan & Ors. : (2009) 6 SCC 428

Page 18 of 22

21. Clause 10 of the Special Absorption Rules provides that the Direct

recruits irrespective of their date of appointment shall be placed above the

Special appointees in the seniority list. The State of Tamil Nadu has

supported Clause 10 of the Special Absorption Rules on the ground that the

Direct recruits form part of a separate class and are entitled to be placed

above the employees who were appointed otherwise than through a

competitive selection procedure and regularised in service. There is a valid

reason for according seniority to the Direct recruits above the Special

appointees. We find that the delay in appointment of the Direct recruits has

been adequately explained by the State. It is stated that the delay in

appointment of the Direct recruits was for the reason that the temporary

appointees had occupied the post. This is a special feature of this case that

the employer has 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

State Government accepting this position has come out with a solution

under Clause 10 of the Special Absorption Rules which is just and proper.

Clause 10 follows the well-settled norm to fix seniority that the Government

employees who are appointed following the regular mode of appointment

must rank higher in the seniority list to those who came in the cadre

through regularisation. The employer has a right to frame rules for

determining inter se seniority of two or more classes of employees in the

cadre. The employer is also entitled to devise a methodology to fix seniority

of its employees. The Rules framed by the employer are not open to

challenge on the ground that it could have been framed in a better manner.

Page 19 of 22

A rule framed by the Government can also not be challenged on the ground

that some hardship would be caused to a class or a section of employees.

There is another reason to hold the validity of Clause 10. The Special

Absorption Rules provide under Clause 3 that the Special Absorption Rules

shall have overriding effect and prevail over any repugnant corresponding

provision under the General Rules, Special Rules, Fundamental Rules or

Tamil Nadu Leave Rules. The Special appointees have not questioned

Clause 3 and they are bound by the conditions under G.O. dated

19

th June 1987.

22. The Division Bench of the High Court was right in holding that M.

Prema and other Special appointees shall rank below the Direct recruits of

1983 batch in the seniority list. Though the Special appointees dispute the

observation in the impugned judgment dated 3

rd

April 2006 that the validity

of Clause 10 of the Special Absorption Rules was affirmed by the High Court

in a previous proceeding, we are inclined to approve the decision of the

Division Bench that the Direct recruits of 1983 batch shall rank higher to

the Special appointees in the seniority list. However, the Division Bench

committed an error in holding that the Compassionate appointees shall be

placed above the Direct recruits in the seniority list on the basis of their

date of appointment. By virtue of the impugned judgment, the

Compassionate appointees shall be placed above the Direct recruits and the

Special appointees in the seniority list. While holding so, the High Court

overlooked a fundamental rule in service jurisprudence that the Direct

Page 20 of 22

recruits are entitled to claim seniority over other appointees who came in

the cadre through other sources.

23. This is a basic rule of seniority that a Government employee

appointed to a post following the due procedure and in accordance with the

rules must rank senior to the appointees who entered in service as a

temporary or stopgap measure or were appointed owing to some emergency.

In “Direct Recruit Class II Engineering Officers' Association v. State of

Maharashtra & Ors.”

6 this Court held that a Direct recruit is entitled to

claim seniority from the date of appointment and his seniority cannot be

fixed based on the date of his confirmation in service. It further laid down

that a Government employee cannot claim seniority from the date of initial

appointment if he is a temporary or ad hoc employee and not appointed

through the rules rather was a stopgap arrangement. This position in law

has continued till date. There are, though, decisions where this Court has

granted benefit of the service rendered by a Government employee on ad

hoc or temporary post till the date of regularisation in service, but only for

pension purposes (see, “State of Himachal Pradesh and Anr. v. Sheela Devi”

7;

“S.D. Jayaprakash and Ors. v. Union of India and Ors.”

8). This benefit

of counting of ad hoc or temporary services is generally extended to the

Government employees where the rules provide so, in recognition of their

past services. Such benefit has been granted on an understanding that the

7

State of Himachal Pradesh and Anr. v. Sheela Devi : 2023 SCC OnLine SC 1272

8

S.D. Jayaprakash and Ors. v. Union of India and Ors. : 2025 SCC OnLine SC 973

Page 21 of 22

past valuable services rendered by the Government employees when they

were working on ad hoc or temporary basis should not be wiped out

completely after they are regularised in service. However, such past services

of the Special appointees or for that matter of the Compassionate appointees

rendered as ad hoc or temporary employees cannot be counted to accord

them seniority over the Direct recruits of 1983 batch.

24. As to inter se seniority between the Compassionate appointees and

the Special appointees, we hold that the same must be decided on the basis

of their date of regularisation. This is one criterion which is most suited in

the present scenario. Any inter se dispute regarding seniority of two sets of

employees should be examined on broad principles with a common sense

approach. In every seniority-linked dispute there shall always be one or

other factor which may weigh in favor of or against a particular set of

employees. The Court is, therefore, required to take a practical view of the

matter and should not involve itself in forensic examination of every little

fact howsoever insignificant it may be. A Court of law must remember that

inter se seniority dispute between two sets of employees in the same cadre

need not be examined with mathematical precision. Shortly put, except in

cases where the Recruitment Rules are clear and provide a methodology for

fixing inter se seniority, 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 seniority.

25. In the result, T.C.(C) Nos. 50 of 2013, 51 of 2013 and 52 of 2013 are

dismissed. Civil Appeal Nos. 8756 of 2013 and 8757 of 2013 are disposed

Page 22 of 22

of with the aforesaid direction for fixing inter se seniority of the Special

appointees vis-à-vis the Compassionate appointees. Civil Appeal No. 8755

of 2013 is allowed to the extent that the Compassionate appointees, namely,

S. Prem Kumar and T.A. Kannappa shall not rank above the Direct recruits

of 1983 batch.

26. The judgment dated 3

rd April 2006 delivered in W.P. No. 21654 of

2004 with W.P. Nos. 3822 and 3823 of 2006 is modified to the above extent.

There shall be no order as to costs.

………...………….……………………….., J.

(S.V.N. BHATTI)

………...………….……………………….., J.

(SHREE CHANDRASHEKHAR)

NEW DELHI;

OCTOBER 09, 2026