Madras High Court
T.L.Ranganathan vs The Inspector General Of Police on 7 June, 2013
Author: T. Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 7.06.2013
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.Nos.15653 to 15658 of 2009
W.P.No.15653 of 2009
T.L.Ranganathan .. Petitioner
vs.
1.The Inspector General of Police,
Armed Police,
Kilpauk,
Chennai 600 010.
2.The Deputy Inspector General of Police,
Armed Police,
Kilpauk,
Chennai 600 010.
3.The Commandant,
Tamil Nadu Special Police,
VIII Battalion,
New Delhi 110 064.
4.The Superintendent of Police,
Security Branch,
CID,
Chennai 600 002. .. Respondents
Writ petitions filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Certiorified Mandamus to call for the records of the third respondent in his proceedings No.Rc.No.A1/13092/2008 BO No.545/2009 of 2009, dated 20.07.2009 and the orders of the first respondent in his proceedings No.Rc.No.A1/1827/2009 3, dated 30.06.2009 and another Proceedings No.C.No.Estt/I(i)/11545/IG/2000, dated 12.1.2001, quash the same and consequently, direct the first respondent to promote the petitioners to the post of Sub Inspector of Police with effect from 20.4.1999 and to the post of Inspector of Police with effect from 9.2.2010 by refixing the seniority of the petitioners in appropriate place in seniority list duly in compliance with order of the second respondent, dated 16.12.1998 vide Proceedings No.Bo/929/98 and grant all other service benefits including arrears of pay and allowances with interest at the rate of 18% per annum.
For Petitioners ... Mr.B.Vijay (for all the writ petitions)
For Respondents ... Mr.R.Vijayakumar, AGP
(for all the writ petitions)
COMMON ORDER
These writ petitions have been filed by six petitioners/Sub Inspectors of Police jointly aggrieved by the impugned order passed by the third respondent, the Commandant, Tamil Nadu Special Police, VIII Battalion, New Delhi in his proceedings No.Rc.No.A1/13092/2008 BO No.545/2009 of 2009, dated 20.07.2009 and in the proceedings passed by the first respondent, Inspector General of Police(Armed Police), Kilpauk, Chennai in No.Rc.No.A1/1827/2009 3, dated 30.06.2009 and another Proceedings No.C.No.Estt/I(i)/11545/IG/2000, dated 12.1.2001 and quash the same with a consequential direction to the first respondent to promote the petitioners to the post of Sub Inspector of Police with effect from 20.4.1999 and to the post of Inspector of Police with effect from 9.2.2010 by refixing the seniority of the petitioners in appropriate place in seniority list in due compliance with the order of the second respondent, dated 16.12.1998 vide Proceedings No.BO/929/98 and grant all other service benefits including arrears of pay and allowances with interest at the rate of 18% per annum.
2.Mr.B.Vijay, learned counsel appearing for the petitioners has submitted that all the petitioners joined in the police service as Grade II Police Constable in the Tamil Nadu Special Police Battalion VIII on 17.3.1986 and the service conditions of the petitioners are governed by the Tamil Nadu Special Police Subordinate Service Rules, 1978. After some time, the petitioners were promoted as "Temporary Lance Naik" on 24.01.1987 and regularised on 18.3.1990. Thereafter, the petitioners were further promoted as "Temporary Naik" on 16.02.1993 and regularised as "A" Naik on 19.4.1993. Subsequently, they were further promoted as "Temporary Havildar" and regularised in the said post on 18.03.1994. Later, the petitioners were promoted as "Temporary Sub Inspector" on 12.01.2001 and with effect from 18.03.2005, the petitioners are serving as "A" List Regular Sub Inspector. Due to implementation of the order of regularisation with retrospective effect, all the petitioners were given benefit of Selection Grade in the post of Havildar on completion of 10 years of service on 17.3.2004 by the order dated 19.3.2005. When the services of the petitioners were regularised with effect from 18.3.1994 and they were also granted the benefits of regularisation, contrary to Rule 9 of the Tamil Nadu Special Police Subordinate Service Rules, 1978 (hereinafter referred to as "the TNSPSS Rules"), the first respondent, Inspector General of Police(Armed Police) has erroneously exceeded the power given to him and infringing Rule 9 of the TNSPSS Rules, revised the seniority of the petitioners without giving any prior notice. Therefore, the impugned order seeking to revise the service right accrued by the petitioners, cannot be allowed to stand.
3.It was further pleaded that when the petitioners were conferred with the benefit of regularisation with retrospective effect from 18.03.1994, before revising the date of regulrisation, the respondents have not even come forward to issue any notice to the petitioners.
4.It was also pleaded that even in paragraph 13 of the counter affidavit filed by the respondents, they have admitted the fact of non-issuance of notice before passing the impugned order, hence, it was pleaded for the petitioners that when the respondents themselves have admitted the case of the petitioners that the impugned orders were passed without issuing any prior notice revising the date of regularisation as 18.3.1997, the same are liable to be set aside. Besides, the impugned orders, which have been passed with civil consequence have taken away the accrued rights of the petitioners, hence, the same are not only contrary to Article 14 of the Constitution of India, but also against the settled law.
5.Finally, it was pleaded that it was an admitted case of the Director Inspector General of Police in his proceedings in Re.No.59636/NGB V(2)/98, dated 22.4.1998 that there has been a difference of anomaly between the Tamil Nadu Special Police, VIII Battalion and the Tamil Nadu Special Police, IX Battalion. The petitioners belonging to Tamil Nadu Special Police, VIII Battalion are not given adequate promotion on par with the police personnel served in the Tamil Nadu Special Police, IX Battalion. The highest Officer in the Police Department, who is the Director General of Police in his proceedings dated 22.4.1998 has clearly stated that the services of the Police Constables in Tamil Nadu Special Police, IX Battalion were to be regularised as LNKs or NK retrospectively to enable them to be promoted as Havildars with effect from 18.3.1996, after the Director General of Police's proceedings that the said difference in the anomaly is to be rectified by exercising the power conferred under Rule 8 of TNSPSS, 1978, the Inspector General of Police, Armed Police issued suitable instructions to the concerned Deputy Inspector General of Police, Armed Police to regularise the services of the Police Constable as LNK and Naiks of Tamil Nadu Special Police, VIII Battalion with retrospective effect on par with the Personnel of Tamil Nadu Special Police IX Battalion and report compliance by 25.5.1998 without fail. Finally, the Deputy Inspector of Police, Armed Police, Chennai in his proceedings Rc.No.A2/6831/98, dated 13.5.1998 requested the Commandant, TSP VIII Battalion to send proposals immediately to order revision of promotion list as instructed in reference cited (Chief Office Memo in C.Nos.59636/NGB.V(2)/98, dated 22.4.1998 and Memo C.No.A4/6068/IG/98, dated 6.5.1998). Thereafter, the Commandant, VIII Battalion sent his Proceedings in RC.No.A1/6701/98, dated 24.6.1998 to the Deputy Inspector General of Police, Chennai, wherein, he requested to send the proposal for regularisation of certain police personnel, their service rolls required, for that the Superintendent of Police 'Q' Branch CID, Principal, PTC Ashok Nagar, Chennai and Temporary Police Training College, Veerapuram have been addressed to send the service rolls. Thereafter, the Deputy Inspector of Police, Armed Police, Chennai by his proceedings Rc.No.A2/6831/1998, dated 8.12.1998 regulairsed the services of 13 persons of the Tamil Nadu Special Police, VIII Battalion with retrospective effect as per Rule 8 of TNSPSS in the category of LNK, NK and Havildar on the dates noted against each. Thus, the services of the petitioners were also regularised with retrospective from 18.3.1994. Having regularised the services on the basis of the recommendations made by the Additional Director General of Police, Armed Police by his Proceedings dated 7.12.1996 followed by the Proceedings dated 22.4.1998 passed by the Director General of Police, the first respondent, Inspector General of Police, Armed Police cannot seek to change or make any kind of rectification.
6.In support of his submission, the learned counsel for the petitioners has relied upon the decision of the Apex Court in CANARA BANK AND OTHERS VS. DEBASIS DAS AND OTHERS (2003 (4) SCC 557) wherein, it is held thus:
"No one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice."
The learned counsel for petitioners while referring to the above said decision of the Apex Court has further submitted that in the present case, admittedly, when the respondents have not issued any notice calling upon the petitioners to give explanation, the impugned orders passed by the first and third respondents are liable to be interfered with.
7.Again, the learned counsel for the petitioners relied upon another decision of the Hon'ble Apex Court in UNION OF INDIA AND ANOTHER VS. S.K.GOEL AND OTHERS (2007 (14) SCC 641), wherein paragraph 28 reads as follows:
"It was also argued by the learned Senior Counsel appearing for respondent 1 that the entries for the period had an element of adverse reflection and for that purpose the seniority of respondent 1 was downgraded and, therefore, ACR ought to have been communicated to respondent 1. In our opinion, the observations of the High Court are wholly unjustified inasmuch as the post of the Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on the basis of merit. No judicial review of the DPC proceedings, which are ordinarily conducted in accordance with the standing Government instructions and rules is warranted. The norms and procedure for DPC are prescribed in OM dated 10.4.1989. It is thus seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a Government employee. The decision of the Central Government is in strict accordance with the prevailing rules and Government instructions. In the absence of any violation, the impugned order of the High Court while undertaking a judicial review under Article 226 of the Constitution of India, is wholly unjustified. Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time. Therefore, in the facts and circumstances of the present case, where there are no adverse remarks whatsoever against respondent 1, the High Court ought not to have interfered with and passed the impugned direction. This apart, as per the instructions contained in para 6.21 of DOP&T Order No.22011/5/86/Estt.D, dated 19.4.1981, as amended, DPC is not required to be guided merely by the overall grading, if any, that may be recorded in Crs, but to make its own assessment on the basis of the entries in CRs. DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the impugned order of the High Court, in our opinion, is liable to be set aside."
8.He has also relied upon yet another decision in GOVERNMENT OF ANDHRA PRADESH AND OTHERS VS. M.A.KAREEM AND OTHERS (1991 SUPP (2) SCC 183), wherein it is held thus:
"The Sub-committee upon giving opportunities of hearing to all parties and or their lawyers opined that having regard to the consistent practice followed by the High Court that seniority be determined as per merit, the same rule should be made applicable and thus negatived the contention raised on behalf of the appellant and persons similarly situated that inter se seniority be determined on the basis of the respective dates of appointment of the candidates."
9.In the above mentioned background while elaborating his submissions, he has pleaded that the respondents have taken away the vested legal rights of the petitioners by passing the impugned orders. It is a well settled principle of law that such vested rights of the petitioners cannot be taken away without hearing the parties. Hence, he pleaded, the impugned orders passed by the first and third respondents by depriving the monetary benefits, without giving notice to the petitioners, are violative of Article 14 of the Constitution of India and the same are liable to be set aside. On the above said basis, he prays for allowing all the writ petitions.
10.A detailed counter affidavit has been filed by the respondents.
11.Mr.R.Vijayakumar, learned Additional Government Pleader appearing for the respondents has submitted that the petitioners were given the benefit of regularisation with effect from 18.3.1994. Later, it was found that they are not eligible to get the benefit of regularisation with retrospective effect, hence, the first and the third respondents have passed the impugned orders dated 12.1.2001 and 30.6.2009 and 20.7.2009 revising the seniority. Therefore, the all contentions of the petitioners that the respondents have passed the impugned orders without considering the order dated 16.12.1998 passed by the Commandant, T.S.P.VIII Battalion, Veerapuram are not correct. In fact, he pleaded, the petitioners were duly informed by the Inspector General of Police, Armed Police, by his proceedings dated 12.01.2001 that the Havildars ordered to be promoted as Sub-Inspectors on temporary basis shall be liable to be reverted because of the wrong retrospective regularisation ordered in some Battalions, that has caused an anomaly making the juniors becoming seniors while fixing combined seniority at State-Level. Hence, all the Commandants and Deputy Inspectors General of Police, Armed Police, Chennai and Trichy have decided to revise the date of regularisation of services of Naiks with effect from 04.08.1995 i.e., the date of issuance of Government Order abolishing the post of Lance Naiks and as Havildars with effect from 18.3.1997 in respect of police personnel whose services were regularised with retrospective effect when they were actually not qualified to hold the posts. Accordingly, the revised combined seniority list of Havildar (General) was drawn in the Armed Police for the purpose of ordering temporary promotions to the rank of Sub Inspectors(General) to fill up the vacancies to the extent necessary. Therefore, he has pleaded that it is not fair on the part of the petitioners to say that the impugned orders were passed without any prior notice to the petitioners.
12.It was also further pleaded that when the promotion to the post of Lance Naik was ordered by conducting the promotion test on 20.12.1993 in TSP IX Battalion and their services were regularised in different dates with retrospective effect and they were also promoted as Naik during the year 1994 after undergoing the test and their services were regularised with retrospective effect even before the completion of one year of service on the due date of eligibility (31st December), they would be eligible for promotion as Naik only during 1995 or from 04.08.1995, the date on which the posts of Lance Naiks were upgraded as Naiks. The promotion test for Havildars was conducted on 12.8.1996 and the services were regularised retrospectively with effect from 18.03.1996 even before the completion of probation as Naik and the eligibility criteria as on 31st December. The services of 10 such persons were regularised in TSP IX Battalion and Promotion tests were also conducted in TSP VIII and IX Battalions as per the instructions of the Inspector of General of Police, Armed Police, Chennai. When the list was published in TSP IX Battalion wrongly, the list was not published in TSP VIII Battalion. Hence, the personnel of TSP VIII Battalion have given representation to give promotion on par with the Police personnel of TSP IX Battalion. Accordingly, the Deputy Inspector General of Police, Armed Police, Chennai issued regularisation orders with retrospective effect in the rank of LNK, Naik and Havildar to 13 personnel of TSP VIII Battalion on 18.12.1998. Whereas promotion to the rank of Lance Naik was ordered on completion of three years without taking into account the vacancies that existed during the year 1990. As the said order was found to be defective, the same was revised by the order dated 28.04.2000 by the Deputy Inspector General of Police, Armed Police on the direction of the Inspector General of Police, Armed Police, dated 19.04.2000. Therefore, the impugned order passed by the first respondent cannot be found fault with. Hence, he prays this Court that when the impugned order was in accordance with law, all the writ petitions are liable to be dismissed.
13.Heard Mr.B.Vijay, learned counsel appearing for the petitioners and Mr.R.Vijayakumar, learned Additional Government Pleader appearing for the respondents.
14.From the above facts, it is known that all the petitioners were appointed to the post of Grade II Police Constable in the Tamil Nadu Special Police Battalion VIII on 17.03.1986 and the service conditions of the petitioners are governed by the Tamil Nadu Special Police Subordinate Service Rules, 1978. All of them were considered for temporary promotion as "Temporary Lance Naik" on 24.01.1987. Subsequently, after competing the period of three years, they were regularised in the said post on 18.03.1997. Thereafter, they were promoted as "Temporary Naik on 16.02.1993 and they were regularised as "A" Naik on 19.04.1993. After some time, all the petitioners were further promoted as "Havildar". At this point of time, representations were given by the petitioners to rectify certain anomaly existing between the Tamil Nadu Special Police VIII Battalion and IX Battalion. After receiving such representations, recommendation was made by the Commandant, Tamil Nadu Special Police VIII Battalion, Veerapuram to the Inspector General of Police, Armed Police, Chennai and four others by his letter dated 18.11.1996. The Additional Director General of Police, Armed Police, Chennai has also made another recommendation by his letter dated 7.12.1996 stating that as per the service rules, Police Constables, who have put in three years of service are eligible for promotion as LNKs on completion of their probation on passing the small arms cadre courses and are eligible for promotion as Nks on their satisfactory completion of one year service as LNKs and also to fix the seniority of the personnel, who are fit for promotion as Havildars with effect from 18.3.1996 as per Rule 7(b) (III) (f) of TNSPSS Rules, 1978. But as the Tamil Nadu Special Police, VIII Battalion is temporary Battalion, no "C" list was drawn and the services of the said Battalion have not been regularised. Hence, the personnel in VIII Battalion have claimed their legitimate rights to regularise their services with retrospective effect on par with the personnel of Tamil Nadu Special Police IX Battalion, who were enlisted on the same date. Accepting the representations as genuine, the Additional Director General of Police in his recommendation dated 7.12.1996 has specifically mentioned that all the petitioners belonging to Tamil Nadu Special Police, Battalion VIII have become juniors to the personnel of other Battalion, hence, he requested the Government to come forward to fix the seniority of the personnel with retrospective effect with all financial benefits as per Rule 7(b) (III) (f) of TNSPSS Rules, 1978. When the Additional Director General of Police, Armed Police and Railways, Chennai in his proceedings dated 7.12.1996 accepted the representation of the petitioners as genuine to regularise their service with retrospective effect on par with the police personnel of Tamil Nadu Special Police IX Battalion, who were enlisted the same date for the reason that owing to administrative reasons, 'C' list was not drawn to the police personnel enlisted in Tamil Nadu Special Police VIII Battalion. As a result, they became juniors to the personnel of other Battalions where tests were conducted on due dates and promotions were also ordered in time. The said recommendation of the Additional Director General of Police, Armed Police was accepted by the Director General of Police in his proceedings dated 22.4.1998 to rectify the anomaly indicated by the Additional Director General of Police. Subsequently, the Inspector General of Police in his proceedings dated 6.5.1998 requested the Deputy Inspector General of Police, Armed Police to examine the case and issue necessary orders regularising the services of the Police Constables as LNK and Naiks of Tamil Nadu Special Police VIII Battalion with retrospective effect on par with the Police personnel of Tamil Nadu Special Police IX Battalion and report compliance by 25.5.1998 without fail, which was accepted by the Deputy Inspector General of Police in his R.C.A2/6831/98, dated 8.12.1998. Later, by order dated 19.3.2005 passed by the Deputy Inspector General of Police, Chennai, Selection Grade benefits were given to the petitioners to the post of Havildar with effect from 18.3.2004 on completion of ten years of service. When all these petitioners were given regularisation and the Selection Grade along with monetary benefits in the post of Havildar on 18.3.1994 as they completed ten years of service on 17.3.1994 by the order dated 19.3.2005, the first respondent ought not to have disturbed the accrued and settled service rights of all the petitioners, that too, without issuing any prior notice calling upon a minimum explanation from the petitioners as held by the decision of the Apex Court in UNION OF INDIA AND ANOTHER VS. S.K.GOEL AND OTHERS (2007 (14) SCC 641), wherein it is held as follows:
"Since the matter of seniority has been well settled and this Court in Plethora of cases had held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time."
15.The above principle that once the seniority of the petitioners is well settled, the same should not be unsettled after a lapse of time will equally apply to the case of the petitioners. Therefore, the impugned orders are liable to be set aside.
16.Moreover, a reference can be made from the decision of the Apex Court in BIMLESH TANWAR VS. STATE OF HARYANA AND OTHERS (2003 (5) SCC 604), wherein it has been held thus:
"Furthermore, it is now well settled that a settled seniority position should not be unsettled."
17.The non issuance of prior notice before passing the impugned order could be well seen in paragraph 13 of the counter affidavit filed by the respondents wherein, they have clearly admitted the fact that the petitioners were not issued with any prior notice before passing the impugned order. The above admitted mistake of the respondents is per se amounting to violation of principles of natural justice. Time and again, this Court as well as the Apex Court has held that no one should be condemned before being heard. That principle is also violated. Moreover, the second rule that "Audi Alteram Partem" i.e. "hear the other side" is also flagrantly violated. Therefore, the impugned order passed by the respondents settling the concluded seniority benefits of the petitioners is apparently against the approved rule of fair play and the same is liable to be interfered with.
18.In the light of the above said decisions of the Apex Court, the impugned orders passed by the first and third respondents are not only contrary to Rule 9 of the Tamil Nadu Special Police Subordinate Service Rules, 1978, but also against the recommendation dated 7.12.1996 made by the Additional Director General of Police, Armed Police, Chennai and the proceedings dated 22.4.1998 passed by the Director General of Police, Chennai. Hence, the impugned orders dated 12.1.2001 and 30.06.2009 passed by the Inspector General of Police, Armed Police and another impugned order dated 20.07.2009 passed by the third respondent, Commandant, Tamil Nadu Special Police, TSP VIII Battalion, New Delhi are liable to be set aside. Accordingly, the same are set aside. In view of the above, the respondents are directed to consider the further promotional avenue of the petitioners to the posts of Sub Inspector of Police and the Inspector of Police taking into account the seniority of the petitioners in the post of Havildar with effect from the date of regularisation i.e. on 18.3.1994.
19. The writ petitions are accordingly disposed of. Consequently, connected M.P.Nos.1, 1, 1, 1, 1 and 1 of 2009 and 2, 2, 2, 2, 2 and 2 of 2009 are closed. There is no order as to costs.
07.6.2013 Index:Yes/No Internet:Yes/No cla To
1.The Inspector General of Police, Armed Police, Kilpauk, Chennai 600 010.
2.The Deputy Inspector General of Police, Armed Police, Kilpauk, Chennai 600 010.
3.The Commandant, Tamil Nadu Special Police, VIII Battalion, New Delhi 110 064.
4.The Superintendent of Police, Security Branch, CID, Chennai 600 002.
T. RAJA,J.
cla W.P.Nos.15653 to 15658 of 2009 07.06.2013