Madras High Court
T.Manivannan vs The Director General Of Police on 2 August, 2010
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.08.2010 CORAM : THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.No.31221 of 2005 1.T.Manivannan, 2.Annadurai, 3.M.Muthu, 4.D.John Devadoss, 5.K.Jayavel, 6.C.Rajakili, 7.V.Mani, 8.P.T.Swaminathan, 9.E.Sivakumar, 10.K.Arulselvam, 11.V.Natarajan, 12.D.Varadan, 13.A.P.Pushparaj, 14.V.Murali, 15.P.Babu, ... Petitioners Vs. 1.The Director General of Police Chennai-4, 2.The Deputy Inspector General of Police Kancheepuram, 3.The Superintendent of Police Tiruvallur District, 4.The Superintendent of Police Kancheepuram District, 5.The Commissioner of Police Chennai City, Chennai-8. 6.M.Guruswamy 7.R.Pramasivam 8.T.Nandagopal 9.T.Mohandas 10.S.Selvaraj 11.D.Ramadoss 12.K.Natarajan 13.P.Kumar 14.G.Arumugam 15.R.Udayakumar 16.A.Bakkish 17.G.Ezhimurugan ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorarified Mandamus, calling for the records of the second respondent in RC No.A1/1416/2005, dated 22.07.2005 and to quash the same and direct the respondents 1 and 2 to finalise the 'C' list on the basis of the marks secured by the petitioners in the range promotion board for the year 2004 and to grant such other further relief, this Court deem it fit. For Petitioners : Mr.Venkataramani, Senior Counsel for Mr.M.Muthappan For Respondents : Mr.P.S.Raman, Advocate-General assisted by Mrs.C.K.Vishnupriya, A.G.P for R1 to R5 O R D E R
The writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of Certiorarified Mandamus, calling for the records of the second respondent passed in RC No.A1/1416/2005, dated 22.07.2005 and to quash the same and further direct the respondents 1 and 2 to finalize the 'C' list on the basis of the marks secured by the petitioners in the range promotion board for the year 2004 and to grant such other further relief by this Court on the facts and circumstances of the case.
2. It is an admitted fact that the petitioners have entered into the service as Grade-II Police Constables in the Chengelpet East, Kancheepuram District, Armed Reserve and subsequently, they were promoted as Grade-I Police Constables. After successfully completing their probation, they were qualified to participate before the range promotion board for their next promotion as Sub-Inspector of Police (Armed Reserve). The petitioners had participated in the range promotion board, that was conducted in the year 2003, however they were not selected, since they could not secure the minimum cut-off marks for the selection. As per the Service Rules, every year range promotion board is convened for the preparation of 'C' list of Head Constables fit for promotion as Sub-Inspector of Police. Accordingly, the Director General of Police, Chennai, the first respondent herein had issued a Memorandum in R.C.No.69684/NGBV(2)/2004, dated 12.01.2005 convening the range promotion board for drawal of 'C' list of Head Constable (Armed Reserve) fit for promotion as Sub-Inspector of Police (Armed Reserve) for the year 2004. As per the Memorandum, there were 12 vacancies available in Chengelpet Range. The Superintendent of Police Chengalpet East, Kancheepuram, who was the Chairman of the range promotion board issued a Memo in R.C.No.A3/1648/05, dated 24.02.2005 listing the eligible Head Constables for the written test and for promotion as Sub-Inspector of Police (AR).
3. According to the petitioners, nearly 126 Head Constables, eligible for promotion were allowed to participate in the range promotion board. The petitioners, who attained sufficient seniority also participated in the written test held on 01.03.2005 and secured pass marks and were eligible for the next stage of selection. After the written test, 44 Head Constables became eligible to participate in the drill and Viva Tests and the list of selected candidates also included the names of the petitioners. Mr.Venkataramani, learned Senior Counsel appearing for the petitioners submitted that the petitioners appeared for the oral test and also drill test, after they had gone through the written test. However, the result of the selected head constables was not published, by the Chairman of the Range Promotion Board and the petitioners herein subsequently came to know that there was certain allegations raised against the petitioners, by way of anonymous petitions, stating that the petitioners had tampered with their Annual Confidential Reports (ACR) in order to secure high marks for their past performance. The allegation was that the petitioners, as Head Constables with the help of the office staff corrected the Annual Confidential Reports, after having removed the earlier Annual Confidential Report, whereby they had been given lesser grading. It was also alleged that new Annual Confidential Reports with highest grading were replaced by them. The petitioners and others were issued Charge Memos under Rule 3(b) of Tamil Nadu Police Subordinate Service Rules (herein after referred to as TNPSS Rules), dated 30.06.2005 for the alleged delinquency of tampering with their Annual Confidential Reports, in order to secure the highest marks for the past performance.
4. Mr.Venkataramani, learned Senior Counsel appearing for the petitioners submitted that the charge memos were issued against the petitioners without any basis, in order to prevent the petitioners from getting their due promotion. The learned Senior Counsel further submitted that there was no possibility for the petitioners for tampering with the the documents, especially the ACR, maintained by their superior officers. After issuance of the charge memos to the petitioners, the second respondent has chosen other head constables, who were juniors to the petitioners and recommend remaining 22 persons for the consideration of their inclusion in the 'C' list for the year 2004, though the petitioners are seniors to them and also secured highest marks in the written examination, drill test and the test of viva-voce besides their good marks secured in past performance. The second respondent took step to publish the 'C' list for the year 2004 from among the 22 remaining candidates, leaving the petitioners. Hence, the petitioners herein filed writ petitions in W.P.Nos.24837 to 24848 of 2005 before this Court and this Court by Order dated 03.08.2005, directed the respondents therein not to publish the result of 'C' list prepared by them. In spite of the direction, the second respondent had released the impugned 'C' list dated 22.07.2005, through a departmental communication. The Commissioner of Police, Chennai, Superintendent of Police, Kancheepuram, Superintendent of Police, Trivallur, so as to communicate the 'C' list to the individuals, whose names have been included in the 'C' list. The impugned 'C' list dated 22.07.2005 contains the names of the respondents 5 to 17, hence, they are also arrayed as respondents in this writ petition as necessary parties.
5. According to the petitioners, the respondents 1 to 5 have violated the principles of natural justice and also the TNPSS (D & A) Rules, in passing the impugned orders. Though as per Rule 4(a) of the General Rules, the promotion list shall be communicated to such of those persons, whose names have been included and others who were deferred or deleted, the mandatory procedure was not complied with, so far as the petitioners are concerned. The learned Senior Counsel for the petitioners further contended that merely because the petitioners had been served with charge memos, under Rule 3(b) of TNPSS (D&A) Rules, they could not be treated as disqualified persons for consideration and for the inclusion of their names in the 'C' list, prepared by the respondents 1 to 4 for the promotion of Sub-Inspectors.
6. In the counter filed by the second respondent adopted by the respondents 1, 3, 4 and 5, it has been admitted that the petitioners herein had participated in all the contest before the range promotion Board for the relevant year. Further it is stated that as per rule 3(b)(ii) of TNPSS Rules, promotion shall be made from a list of qualified candidates suitable for promotion, prepared and finalized by the range promotion Board, subject to the approval of the Deputy Inspector General of Police or Commissioner of Police, in respect of promotion from the post of Head Constable to the cadre of Sub-Inspector of Police. It is not in dispute that there should be only one combined list for each range/city for promotion from the rank of Head Constables (Armed Reserve) to the cadre Sub-Inspector of Police (Armed Reserve). It is further, stated that as per Rule 3(b) of Special Rules, in the list of Head Constables, fit for promotion as Sub-Inspectors of Police, only men satisfying the following conditions shall be included:-
(i) Must have good working knowledge of English.
(ii) Must not have completed 55 years of age on the first day of July of the year for which the selection for promotion of Head Constables as Sub-Inspectors is held.
(iii) Must have completed a total service of seven years and must have served as Head Constable whether permanent or officiating for a period of not less than four years on the first day of July of the year. The eligible Head Constables (Armed Reserve) have to be admitted to the Written Test which will be held at central place in the Range. The Range Promotion Board shall thereafter hold a viva-voce examination including a Drill test for those who are successful at the written test, select the men for training and send the list to the respective Deputy Inspector General of Police / Commissioner of Police, concerned for approval.
(iv) In G.O.Ms.No.27, Home, dated 04.01.1978 the Government have ordered that the crucial date for drawing up "C" list of Head Constables fit for promotion as Sub-Inspectors of Police be fixed as the 10th day of April of the year.
(v) As already clarified in Chief Office Memorandum in RC.No.506/NGB.IV(1)/98 dated 13.08.1998, the cases of all Head Constables/Special Sub-Inspector of Police/temporary SI (Armed Reserve) serving in special units like CID wings, PTC, PRSs., PCW, V&AC, etc., should be considered by their parental districts/cities in the respective Range Promotion Board.
(vi) The Range Deputy Inspector General of Police and Commissioner of Police are requested to convene Range Promotion Board for drawal of "C" list of Head Constables (Armed Reserve) fit for promotion as Sub-Inspectors (Armed Reserve).
(vii) Vacancies of Sub-Inspectors of Police (Armed Reserve) under Promotee Quota as on 10.04.2004 as received from the Ranges/Cities concerned have been complied. Accordingly action had to be taken to fill up the following number of posts of Sub-Inspectors of Police (Armed Reserve) under Promotee Quota for the year 2004 in the respective Range/Cities.
7. It is admitted by the said respondents that for Chengelpet Range, the available vacancy was 12 for the relevant period. In the counter, it has been specifically stated that if the specific charges are framed or charge sheet is filed in any criminal case before actual promotion, the concerned person shall not be promoted not withstanding the fact that his name has been included in the panel . Disciplinary proceedings were initiated by the department and on the recommendation of the Vigilance Commissioner, as the same would be equivalent to charges framed under Rule 3(b), that would be held against the candidates, while considering their promotion.
8. As per the counter filed by the respondents 1 to 5, preparation of the recommendation rolls were finalized on 10.03.2005 by the Chengai Range Promotion Board. While finalizing the 'C' list of Head Constables fit for promotion as Sub-Inspectors (AR) for the year 2004, it was decided by the Board consisting of the Superintendent of Police, Chengai East, Kancheepuram and Tiruvallur Districts to personally scrutinize the Annual Confidential Reports (ACRs) of all the 44 candidates including the petitioners, who were eligible for drill and vivo-voce test. On scrutiny, it was found that the Annual Confidential Reports (ACRs) submitted by 22 Head Constables including the petitioners were tampered with, so as to gain more marks in the assessment of the Annual Confidential Reports (ACRs) submitted before the Board (2004). According to the respondents, as per the counter filed by the second respondent, the petitioners have tampered with the Annual Confidential Reports (ACR). The Deputy Inspector General of Police, Villupuram Range, who was incharge of Chengai Range directed the Superintendent of Police, Tiruvallur District to conduct a detailed enquiry and to submit his enquiry report with regard to the allegation of the petitioners tampering with their Annual Confidential Reports (ACRs), in order to secure highest marks for the selection. Based on the said enquiry report, petitioners were not considered to be included in the 'C' list for the promotion. According to the respondents 1 to 5, the respondents 6 to 17 had clear records, without any allegation of any malpractice. Hence, they were considered for drawal of 'C' list and thereby they secured highest marks, after the removal of petitioners names for consideration.
9. In the impugned order dated 22.07.2005, it is specifically stated that in office memo first cited, it was directed by the first respondent, to convene the Range Promotion Board for the drawal of 'C' list of Head Constables (AR) fit for promotion as Sub-Inspectors (AR) for the year 2004. Accordingly, the Chairman, Chengai Range Promotion Board and Superintendent of Police, Chengalpet East, Kancheepuram District was directed to convene the Range Promotion Board as instructed in Range Office memo C.No.A1/1416/2005, dated 29.01.2005. A total number of 117 Head Constables (AR) of Chengai Range, found eligible to attend the written test were permitted to appear for the written test on 01.03.2005. 30 Head Constables (AR) were absent on that date. Out of the remaining 87 Head Constables (AR), who appeared for the written test, 44 Head Constables (AR), secured the required qualifying marks (i.e.12 out of 30) were allowed to participate in drill test and viva-voice test. Paragraph No.6 of the Order reads as follows:
"6. Now, as per instructions issued in Chief Office memo 5th cited, action has been taken to finalise the selection list for the drawal of "C" list of Hcs(AR) fit for promotion as SIs(AR) for the year 2004 out of the 44 Hcs(AR) according to their gradation marks. As per Chief Office instructions, 22 HCs(AR) who were issued with charge memos u/r 3(b) of TNPSS(D&A) Rules, for having found tampering with ACRs/PFs, are disqualified and removed from the list of gradation marks. Vide:Sl.Nos.1 to 16, 19 to 22, 24 and 30."
10. As contended by the Mr.Venkataramani, learned Senior Counsel appearing for the petitioners, the petitioners 1 to 12 were not included in the "C" list, only on account of the memo being issued on them, stating that they had tampered with their Annual Confidential Reports (ACR), otherwise they could have been included in the 'C' list for promotion as Sub-Inspectors.
11. Learned Senior Counsel appearing for the petitioners further submitted that the writ petition Nos.26456 to 26460 of 2005, 27910 to 27916 of 2005, 31851 to 31854 of 2005, 31927 and 31928 of 2005, 26854 of 2005 and 32521 of 2005 filed by the petitioners were allowed, by order dated 27.04.2007 by learned single Judge of this Court. The writ appeal No.143 to 162 of 2008 preferred by the respondents Deputy Inspector General of Police, Kancheepuram Range and the Superintendent of Police, Kancheepuram District were also dismissed by a Division Bench of this Court. The Special Leave Petition preferred by the Deputy Inspector General of Police, Kancheepuram Range and the Superintendent of Police, Kancheepuram District in C.C.No.10656 of 2010 was also admittedly dismissed by the Hon'ble Apex Court. Mrs.C.K.Vishnupriya, learned Additional Government Pleader has not disputed the aforesaid fact.
12. Subsequently, learned Advocate-General appeared for the respondents 1 to 5, however, he has also not disputed the aforesaid factum that the writ petitions filed by the petitioners herein, earlier were decided in favour of the petitioners and the writ appeals and special leave petitions filed by the respondents 2 and 4 herein were subsequently dismissed. In the writ appeal, the Division Bench of this Court has held as follows:
"7.We are able to see from the materials placed on record that more serious allegations of misconduct and gross negligence have been leveled against the persons, against whom further action has been dropped by the authorities. When such is the situation, the writ petitioners, against whom less serious allegations have been made, cannot be made to toil. We are unable to appreciate the contention raised by the appellants in the writ appeals and we are satisfied with the reasons assigned by the learned single Judge in his order dated 27.04.2008, which is a well considered and a merited order and it needs no interference at all by this Court......."
13. It is an admitted fact that the charges leveled against the petitioners were quashed in the earlier writ petitions, which reached finality up to the level of the Hon'ble Supreme Court. Hence, based on the charges, the respondents 1 to 5 cannot deprive the rights of the petitioners, in getting their due promotions. It is made clear that the petitioners are entitled to promotion, had there been no charges framed against them, by way of a Departmental proceeding. It is also not in dispute that the petitioners 1 to 12 have got more marks compared to the other candidates, who are selected and included in the 'C' list, in the absence of charge memos being issued against them. There is no other legal ground available to deny the promotion for the petitioners, other than the charges framed against them. However, in the earlier writ petitions, the charges framed against the petitioners were quashed and that reached finality. The learned Senior Counsel contended that the 'C' list was published by the authority on 15.03.2005, leaving the petitioners and hence, from that date onwards, the petitioners 1 to 12 are entitled to their promotions, on par with similarly placed candidates and that the petitioners 13 to 15 are entitled to promotion on the date, on which their juniors were promoted and both are legally entitled to get restoration of their original seniority with all monetary benefits.
14. Learned Advocate-General appearing for the respondents 1 to 5 has not disputed the fact that the charges framed against the petitioners were quashed, as per the orders passed in the earlier writ petitions and reached finality, after the dismissal of the SLP by the Hon'ble Apex Court. Hence, it is clear that there is no impediment against the petitioners in granting the relief, as there is no charge memo against them. After the charges framed against the petitioners were quashed, the same are nonest in the eye of law.
15. The only question for consideration is whether the petitioners are entitled to restoration of their original seniority with all monetary benefits.
16. In Union of India vs. K.V.Jankiraman, reported in 1991 (4) SCC 109, the Hon'ble Supreme Court has laid down ratio, regarding sealed cover procedure, and ruled that if on the conclusion of the department or court proceeding, the officer concerned is completely exonerated, and where he is under suspension or it is held that the suspension was wholly unjustified, the officer, who could have been promoted earlier should be promoted to the post and accordingly, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course. In the instant case, the petitioners were not even suspended and the charges were not established against the petitioners, even by Departmental enquiry. Admittedly, the charges relating to the Departmental proceedings were quashed by the orders passed by this Court in the writ petitions, which reached finality.
17. In C.O.Arumugam vs. State of T.N, repoted in 1991 Supp (2) SCC 199, the Hon'ble Apex Court has held that the promotion could be postponed only on a reasonable grounds and to avoid arbitrariness, the authority shall follow certain uniform procedures, according to their Service Rules as follows :
"5. As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16 (1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charges has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted."
It has been made clear by the Hon'ble Apex Court in the aforesaid decisions referred to above, that on the ground of pending charges or criminal cases, promotion of civil servant could be postponed only on reasonable grounds, however, which cannot be against principles of natural justice.
18. In the instant case, as contended by the learned Senior Counsel appearing for the petitioners, the charges framed in the departmental proceedings were challenged by way of writ petitions, that were allowed by a learned single Judge of this Court in favour of the petitioners herein and the same was confirmed in the writ appeals preferred by the respondents. It is not in dispute that after the dismissal of the SLP preferred by the respondents, quashing of charges, as per the order of this Court in the writ petitions reached finality.
19. Admittedly, there was no conviction by any criminal Court against the petitioners and the charges against the petitioners were quashed and reached finality. Hence, in the light of the decisions rendered by the Hon'ble Apex Court, the respondents cannot deny the legitimate right of promotions of the petitioners. As per the ratio laid down by the Hon'ble Supreme Court in the decision reported in 1991 Supp (2) SCC 199 (cited supra), in order to maintain the fundamental rights guaranteed under Article 14 and 16 (1) of the Constitution, this Court is of the view that the petitioners 1 to 12 have to be given promotion with retrospective effect from the date on which they were eligible to get promotions on par with other similarly placed candidates and the petitioners 13 to 15 are entitled to get promotion with retrospective effect from the date on which their juniors were promoted.
20. Learned Additional Government Pleader appearing for the respondents contended that the petitioners are not entitled to get monetary benefits. As contended by the learned Senior Counsel appearing for the petitioners, juniors to the petitioners were already got their promotion and the writ petition is pending for about 5 years, that itself has caused mental agony to the petitioners and as per the ratio laid down by the Hon'ble Apex Court in the decisions referred to above, the petitioners are entitled to all monetary benefits, apart from restoration of their original seniority in their promotion, since all the charges levelled against the petitioners in the Departmental enquiry were quashed and there is no embargo to promote the petitioners as that of other similarly placed Head Constables.
21. On the aforesaid facts and circumstances, I am of the view that the writ petition has to be allowed and the impugned order passed by the second respondent in RC No.A1/1416/2005, dated 22.07.2005 is liable to be quashed.
22. In the result, this writ petition is allowed and the impugned order, so far as the petitioners are concerned is quashed. The respondents 1 and 2 are directed to finalise the "C" list on the basis of the marks secured by the petitioners in the range promotion board for the year 2004 and give promotion to the petitioner 1 to 12 with retrospective effect on par with other selected candidates, according to their original seniority and to give promotions to the petitioners 13 to S.TAMILVANAN,J.
krk / tsvn 15 with retrospective effect from the date on which their juniors were promoted and to pay all monetary benefits to the petitioners, based on such promotions. The respondents 1 and 2 are directed to comply with the above directions, within a period of four weeks from the date of receipt of a copy of this order. However, no order as to costs. Consequently, connected miscellaneous petitions are closed.
02.08.2010 Index : Yes / No Internet : Yes / No krk / tsvn Note to Office: Issue Order copy on 16.08.2010 To 1.The Director General of Police, Chennai-4, 2.The Deputy Inspector General of Police, Kancheepuram, 3.The Superintendent of Police, Tiruvallur District, 4.The Superintendent of Police, Kancheepuram District, 5.The Commissioner of Police, Chennai City, Chennai-8,
This matter is today listed under the caption "For Being Mentioned". After hearing both the learned counsel, the following order is passed.
2. In the order, dated 02.08.2010 passed by this Court in the aforesaid writ petition, paragraph numbers 10,13,19 and 22 is modified and reads as follows :
"10. As contended by the Mr.Venkataramani, learned Senior Counsel appearing for the petitioners, the petitioners 2, 3, 5, 7, 8, 10, 11, 12,15 were not included in the "C" list, only on account of the memo being issued on them, stating that they had tampered with their Annual Confidential Reports (ACR), otherwise they could have been included in the 'C' list for promotion as Sub-Inspectors.
13. It is an admitted fact that the charges leveled against the petitioners were quashed in the earlier writ petitions, which reached finality up to the level of the Hon'ble Supreme Court. Hence, based on the charges, the respondents 1 to 5 cannot deprive the rights of the petitioners, in getting their due promotions. It is made clear that the petitioners are entitled to promotion, had there been no charges framed against them, by way of a Departmental proceeding. It is also not in dispute that the petitioners 2,3,5,7,8,10,11,12 and 15 have got more marks compared to the other candidates, who are selected and included in the 'C' list, in the absence of charge memos being issued against them. There is no other legal ground available to deny the promotion for the petitioners, other than the charges framed against them. However, in the earlier writ petitions, the charges framed against the petitioners were quashed and that reached finality. The learned Senior Counsel contended that the 'C' list was published by the authority on 15.03.2005, leaving the petitioners and hence, from that date onwards, the petitioners 2,3,5,7,8,10,11,12 and 15 are entitled to their promotions, on par with similarly placed candidates and that the petitioners 1,4,6,9,13 and 14 are entitled to promotion on the date, on which their juniors were promoted and both are legally entitled to get restoration of their original seniority with all monetary benefits.
19. Admittedly, there was no conviction by any criminal Court against the petitioners and the charges against the petitioners were quashed and reached finality. Hence, in the light of the decisions rendered by the Hon'ble Apex Court, the respondents cannot deny the legitimate right of promotions of the petitioners. As per the ratio laid down by the Hon'ble Supreme Court in the decision reported in 1991 Supp (2) SCC 199 (cited supra), in order to maintain the fundamental rights guaranteed under Article 14 and 16 (1) of the Constitution, this Court is of the view that the petitioners 2,3,5,7,8,10,11,12 and 15 have to be given promotion with retrospective effect from the date on which they were eligible to get promotions on par with other similarly placed candidates and the petitioners 1,4,6,9,13 and 14 are entitled to get promotion with retrospective effect from the date on which their juniors were promoted.
22. In the result, this writ petition is allowed and the impugned order, so far as the petitioners are concerned is quashed. The respondents 1 and 2 are directed to finalise the "C" list on the basis of the marks secured by the petitioners in the range promotion board for the year 2004 and give promotion to the petitioners 2,3,5,7,8,10,11,12 and 15 with retrospective effect on par with other selected candidates, according to their original seniority and to give promotions to the petitioners 1,4,6,9,13 and 14 with retrospective effect from the date on which their juniors were promoted and to pay all monetary benefits to the petitioners, based on such promotions. The respondents 1 and 2 are directed to comply with the above directions, within a period of four weeks from the date of receipt of a copy of this order. However, no order as to costs. Consequently, connected miscellaneous petitions are closed.
3. The other portions of the order stands unaltered.
krk / tsvn The Registry is directed to issue fresh order copy.