Madras High Court
M. Ashok Kumar S/O Mani vs The Secretary To Government Home ... on 29 April, 2008
Author: P.K. Misra
Bench: P.K. Misra, K. Chandru
JUDGMENT P.K. Misra, J.
1. These two writ petitions are directed against the common order passed by the Tamil Nadu Administrative Tribunal in O.A.Nos. 1271 and 3289 of 2003 dated 19.5.2004.
2. O.A. No. 1 271 of 2003 was filed by the petitioners in W.P. No. 1 9689 of 2004 and O.A. No. 3289 of 2003 was filed by the petitioner in W.P. No. 1 6213 of 2004. The basic prayer in O.A. No. 1 271 of 2003 was for fixation of seniority of the applicant / petitioner, by placing them over and above the temporarily promoted Sub-Inspectors and the prayer in O.A. No. 3289 of 2003 was for quashing Memorandum No. 554/NGB.IV/(i)95 dated 16.4.1999 and for considering the claim of the applicants / petitioners for promotion to the post of Inspector of Police.
3. The basic facts giving rise to filing of such Original Applications and the connected Writ Petitions are as follows:
3.1 The post of Sub-Inspector of Police is filled up by direct recruitment and by promotion from the rank of Head Constables / Special Sub-Inspectors in the proportion of 60:40. During the year 1994, the Tamil Nadu Uniform Services Recruitment Board invited applications for selection to the post of Sub-Inspectors of Police by direct recruitment. The applicants were selected and had undergone one year institutional training and six months practical training at the Police Training College and thereafter posted as Sub-Inspector of Police in independent charge of police station. Subsequently, they completed successfully the period of probation and became full members of service by inclusion of the name in 'B' list. The basic contention of the applicants is to the effect that such persons having been selected against the vacancies available for direct recruitment, their seniority has to be reckoned from the date on which they were appointed and admitted to the Police Training College.
3.2 The contesting respondents had been temporarily promoted and continuing as such for a long period since the Range Promotion Board for their regular promotion was not held for a considerable length of time. Subsequently, the promotions were regularized by the Director General of Police as per the proceedings dated 20.7.1996 pursuant to the order dated 13.11.1995 in O.A. No. 1 565 of 1995, etc. batch. Such temporary promotion had been given under Rule 15(a) of the Special Rules of Tamil Nadu Police Subordinate Service. The contention is to the effect that the seniority of such promoted persons could be reckoned only from the dates of their substantive promotion and not from any earlier date.
3.3 In the counter affidavit filed by the State Government and the Director General of Police in O.A. No. 3289 of 2003, it was indicated that as per the direction of the Tribunal in O.A. No. 2176 of 1991, promotions had been given to 970 Head Constables by including their names at the bottom of 'C' list of Head Constables fit for promotion as Sub-Inspectors for the year 1985. Similarly, in compliance with the order passed by the Tribunal dated 13.11.1995 in O.A. No. 1 565 of 1995, promotions were given to the temporary Sub-Inspectors and Head Constables. In order to comply with the direction given in O.A. No. 1 565 of 1995, the Government fixed the date of 'B' list of temporary Sub-Inspectors and senior Head Constables as follows:
(a) Temporary Sub-Inspectors acted in the post of Sub-Inspectors for 6 years and more as on 21.02.1995 - 21.02.1995
(b) Temporary Sub-Inspectors acted in the post of Sub-Inspectors for 3 years and more as on 21.02.1995- 13.11.1995 (ie. date of judgment in O.A.1565/1995)
(c) Head Constables who are seniors to the temporary Sub-Inspectors acted for 3 years and more as on 21.02.1995 - 13.11.1995
(d) Other Head Constables who were subjected to selection process by the Range Promotion Boards convened for the year 1994 and promoted as Sub-Inspectors- 12.11.1997 (ie. the day next to the date of training) 3.4 Seniority of the direct recruits can be reckoned only from the date of appointment i.e. 1.3.1996, whereas seniority of the promotees had been reckoned from various dates indicated as per the direction of the Tribunal.
3.5 The promotees, who had got themselves impleaded as respondents, in their counter affidavit indicated that since the State Government had failed to hold the required test for promotion, as per the direction given by the Tribunal, promotion had been given retrospective effect from an earlier date. It was further indicated that the Government had taken a policy decision in G.O.Ms. No. 1 526 dated 14.12.1994 to grant regular promotion to the post of Sub-Inspectors from the qualified Head Constables in the existing and future vacancies as a one time measure and by virtue of Rule 39 of the Special Rules for the Tamil Nadu Police Subordinate Service Rules, the provisions of Rule 3(a)(i) had been relaxed and quota has been increased from 40% to 63% as one time measure for the year 1994. The relevant portion of the G.O.Ms. No. 1 256 dated 14.12.1994 is to the following effect:
2. The Government have examined the proposal of the Director General of Police and decided to accept it. The Government, accordingly issue the following orders:
(i) 500 posts of Sub-Inspectors of Police as Training Reserve in the scale of Rs. 1600-50-2300-60-2660 be sanctioned for 2= years from the date on which the newly recruited Sub-Inspectors of Police join the training.
(ii) The vacancies in the post of Sub-Inspectors of Police arising due to retirement and promotion in the years 1995 and 1996 should not be filled up and they should be set off against the Training Reserve of 500 posts of Sub-Inspectors of Police and;
(iii) Rule 3(a)(i) read with annexure-1 of the Special Rules for Tamil Nadu Police Subordinate Service be relaxed as a one time measure for the year 1994 to promote 600 qualified Head Constables to the post of Sub-Inspectors of Police in relaxation of the existing ratio of 40:60 between the promotees and direct recruits fixing the ratio as 63:37.
3. In exercise of the powers conferred by Rule 39 of the Special Rules for Tamil Nadu Police Subordinate Service, the Governor of Tamil Nadu hereby relaxes the provisions of rule 3(a)(i) read with annexure-I of the said rules relating to appointment to the post of Sub-Inspector of Police to raise the promotion quota for Head Constables to the post of Sub-Inspectors of Police from 40% to 63% as a one time measure for the year 1994 to promote 600 qualified Head Constables to the post of Sub-Inspectors of Police.
It was further indicated that the direct recruits can claim seniority only from the date of their initial appointment and they cannot claim seniority from an earlier date.
3.6 In the rejoinder filed by the applicants before the Tribunal, it was stated that seniority cannot be counted from the date of temporary promotion as the selection method had not been followed and was not in accordance with the service rules.
4. The Tribunal found that for the direct recruitment, selection was held for the year 1994 but, the selection process ended in 1995 and the selected candidates were first appointed to undergo training on 1.3.1996 and they completed their training by 12.9.1997 and thereafter they were appointed as Station House Officers / Sub-Inspectors and, therefore, their seniority has to be reckoned from 13.9.1997. So far as promotees are concerned, as per the order passed in O.A. No. 1 565 of 1995, temporary Sub-Inspectors, who have been working as such for a period of six years, shall be straightway regularised after appearing in screening test and were exempted to appear in the test to be conducted by the Range Promotion Board. Similarly, temporary Sub-Inspectors, who had worked for three years and above, also shall be regularised after appearing in the screening test and selection on the basis of the past performance. Similarly, the Head Constables, who were senior to the above two categories, were also to be regularised without any written test. On the basis of such directions, the Director General of Police had issued Memorandum dated 20.7.1996 and subsequently they were regularised. The ultimate conclusion of the Tribunal as contained in para 18 is extracted hereunder:
18. Normally appointment to the post of SIs of Police is by way of 2 modes of recruitment ie. by direct recruitment and by promotion. When a person joins the cadre post, seniority has to be reckoned from that date. If the promotee SI of Police join as regular SIs on a particular date after finishing his training, his seniority has to be reckoned from the date when he took charge as SI of Police. But the period of training cannot be taken into consideration and only the date on which they are appointed to the post can be taken for the purpose of reckoning seniority. So even though the applicants directly recruited SIs were appointed as SIs of Police on 1.3.96, they were only recruited for training and only after finishing 18 months training, they were posted as SIs incharge of Police Station in regular post and therefore the date of their seniority has to be reckoned from the date on which they were posted to actual cadre strength. All these applicants have joined as SIs of Police of particular police stations on 12.9.97. Promotee SIs of police after undergoing condensed training were appointed in independent charge of police stations on 25.6.97. Therefore in the matter of regular appointment to the post of SIs of Police, the promotees even otherwise are entitled to be placed on top of directly recruited SIs.
4.1 Thereafter, the Tribunal held that since the promotees had been working as Sub-Inspectors for a long period even before recruitment of the direct recruits, the Memorandum issued by the Director General of Police was valid.
4.2 The Tribunal further observed that the temporary Sub Inspectors had continued as such for number of years and they were otherwise qualified to be promoted to the post of regular Sub-Inspectors of Police, but they were not earlier promoted because of the absence of the Range Promotion Board. In the earlier round of litigation, the Tribunal had held that such persons can be regularised from the date of their earlier appointment as temporary Sub-Inspectors of Police and only in accordance with such direction, the Memorandum dated 16.4.1999 has been issued regularising such persons with effect from February, 1995 and November, 1995 and there was nothing illegal or improper in such regularisation. Giving of such retrospective regularisation was also based on equitable principle and accordingly there was nothing arbitrary in such decision. On the basis of the aforesaid conclusion, the Original Applications were dismissed.
5. The petitioners have challenged such decision of the Tribunal by raising the following contentions:
(1) The conclusion of the Tribunal that seniority of the direct recruits should be counted from the date of completion of the training is incorrect as the period of training should be considered as part of service as the persons have been appointed to the service with effect from the said date.
(2) ASIs were promoted as Sub-Inspectors only by virtue of the order dated 20.7.1996 and the earlier period of functioning as Sub-Inspector purely on temporary basis could not have been counted towards their seniority.
(3) As per Rule 15(a) of the Special Rules of the Tamil Nadu Police Subordinate Service Rules, temporary promotion cannot be counted for the purpose of seniority.
(4) As per Rule 23(a)(i) of the Special Rules of the Tamil Nadu Police Subordinate Service Rules, services of the temporary SIs cannot be counted from the date of their earlier appointment.
(5) ASIs having been promoted in excess of the quota available to them, cannot claim seniority from the date of initial temporary appointment and they can claim seniority only with effect from the date when the posts were available for them to be regularly promoted.
6. Learned Senior Counsel appearing for the contesting respondents (promotees) has supported the order passed by the Tribunal and has submitted that many of the respondents have been further promoted on the basis of such order and most of them are likely to retire within a short period and, therefore, in the interest of justice, the order passed by the Tribunal should not be interfered with.
7. Since the question of promotion of Sub-Inspectors from ASIs was on the basis of earlier order of the Tribunal in O.A. No. 1 565 of 1995, it would be profitable to refer to such order. In paragraph 72 of the said decision, the following directions have been issued:
72. Regarding promotions of 600 qualified Head Constables as Sub-Inspector of Police in Taluk Police, as one time measure, for 1994, it shall be in the light of observations made in this judgment. The memorandum of Director General of Police in this regard shall be, by adhering to the following guidelines:
(i) The memorandum issued by the Director General of Police itself shall contain the subjects for the Written Test specifically, works like "etc" shall not be given. The criteria for viva-voca test shall be made known in the memorandum. The memorandum shall contain the allocation of the marks and the marks as for viva voce should not be exessive as 15%. The distribution of marks as in the D.G.P. A memorandum dated 26.12.1991 would be reasonable;
(ii) Those who have not completed 55 years of age, as on the D.G.P.'s memorandum dated 21.02.1995, shall be allowed to participate in the tests;
(iii) Restrictions can be imposed from amongst the eligible candidates, so that the number of candidates called to attend the tests are limited to a reasonable multiple of the number of vacancies that are available;
(iv) "Officiating" Head Constables as on 31.12.1985 and who are functioning continuously as Head Constables shall also be entitled to participate in the tests;
(v) Those who were called to attend the Range Promotion Board for 1991 and who are otherwise eligible shall be allowed to participate in the tests;
(vi) Those who have acted as Sub-Inspectors for a total period of 3 years and more as on the date of impugned D.G.P. Memorandum namely 21.2.1995, and persons who are seniors to any such persons and who are eligible, will be screened with reference to their performance on the basis of record of their service and as assessment made of their suitability for promotion, on the basis of their past performance after their appointment as Head Constables including that as Sub-Inspectors. There will be no written test, viva voice test or drill test in their cases;
(vii) Those Head Constables who have been acting as Sub-Inspectors of Police for a period of 6 years and above, as on the date of impugned memorandum, without any blackmark or without any punishments whatsoever, shall be regularised as Sub Inspectors of Police and seniority shall be fixed according to rules.
8. A perusal of the judgment in the said case indicates that for a long period the Range Promotion Board had not undertaken the exercise of promoting ASIs / Head Constables and, therefore, a direction was given for promoting such persons even without going through the normal process of promotion. The above order had not been challenged. On the other hand, the authorities had implemented the order and subsequently fixed the seniority retrospectively.
9. G.O.Ms. No. 1 526 dated 14.12.1994 issued by the Government indicated that Rule 3(a)(i) read with Annexure I of the Special Rules of the Tamil Nadu Police Subordinate Service Rules shall be relaxed as "one time measure" for the year 1994 to promote 600 qualified Head Constables to the post of Sub-Inspector of Police in relaxation of the existing ratio of 40 : 60 between the promotees and direct recruits fixing the ratio as 63 : 37. Therefore, the contention of the petitioners that promotions had been effected and regularised in excess of the quota available for the promotees may not be justified in view of the specific direction issued by the Govenment.
10. The contention of the petitioners to the effect that the Tribunal has committed an error in holding that the seniority of the direct recruits should be considered from the date of the training and the subsequent posting, may be correct. But, even if the above view is taken, the question which still remains is whether the order regularising the services of the promotees /ASIs with effect from an earlier date was justified. Even assuming that seniority of the direct recruits should be counted from 1.3.1996, the date on which they were asked to undergo training, yet if the order regarding retrospective regularisation / fixation of seniority is accepted, the petitioners may not be entitled to any benefit. It is therefore necessary to consider whether the official respondents are justified in regularising the promotion of the ASIs with effect from an earlier date.
11. The Tribunal has referred to several decisions of the Supreme Court, wherein counting of seniority of a temporary promotee from the date of his initial temporary promotion has been considered as valid. In the present case, it has been emphasised by the Tribunal that there was no Range Promotion Board for a quite long period and the ASIs / Head Constables were promoted on temporary basis. In such peculiar circumstances, when the Tribunal had directed that such persons may be considered for regularisation without going through the Range Promotion Board on review of their performance, which has been implemented by the Government and the seniority has been given from an earlier date, such decision of the official respondents cannot be characterised as arbitrary. As a matter of fact, almost under similar circumstances, the Supreme Court in the decision (Santhosh Kumar v. State of Andhra Prddesh and Ors.) has upheld the action of the Government in giving retrospective regularisation in relaxation of the Rules. In our considered opinion, the ratio of the said decision is applicable to the peculiar facts and circumstances of the case.
12. It appears that before the Tribunal a specific stand was taken by the official respondents as well as the impleaded respondents that the Original Applications were barred by limitation. Even though the applicants had filed the Original Applications by indicating that cause of action arose because of non-inclusion of the applicants in the panel for promotion, it is evident that the primary cause of action for filing the Original Applications is fixation of seniority of the promotees over the direct recruits as per the Memorandum dated 16.4.1999. It was asserted in the counter affidavit filed before the Tribunal and apparently not challenged by filing any rejoinder that the order issued by the appropriate authority had been given wide publication by publishing in the Notice Board. Thus, the cause of action for filing the Original Applications arose in 1999, whereas the Original Applications were filed only in 2003. Therefore, the Original Applications filed by the present writ petitions were also barred by limitation.
13. Since the basis of the challenge is regarding seniority accorded to the promotees, acceptance of the contention raised by the applicants / writ petitioners would inevitably result in re-fixation of the seniority. The applicants had not impleaded the persons who are likely to be affected. If such persons were numerous, the applicants / writ petitioners could have taken resort to the principle envisaged in Order 1 Rule 8 of the Code of Civil Procedure by impleading such persons likely to be affected at least in their representative capacity by giving public notice. Therefore, the Original Applications as well as the writ petitions also are liable to be dismissed on the ground of absence of necessary parties.
14. Apart from the above, even assuming that there has been some technical flaw in the order issued by the official respondents or the judgment rendered by the Tribunal, since substantial justice appears to have been done, the High Court in exercise of its jurisdiction under Article 226 need not interfere with such order.
15. For the aforesaid reasons, we do not find any merit in the writ petitions, which are accordingly dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.