Madras High Court
S.Arputhanantham vs ) The Deputy Inspector on 8 October, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/10/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition (MD)No.4824 of 2009 S.Arputhanantham ... Petitioner Vs... 1) The Deputy Inspector, General of Police, Tirunelveli Rural Range, Tirunelveli-11. 2) The Chairman of Range Promotion Board and the Superintendent of Police, Thoothukudi District, Thoothukudi. 3) The Superintendent of Police, Thoothukudi District, Thoothukudi. 4) The State of Tamil Nadu, Rep.by its Secretary to Government, Home(Police III)Department, Fort St., George, Chennai-600 009. ... Respondents (4th respondent impleaded as per the order dated 08.10.2012 in M.P.No.1 of 2012) Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the proceedings in C.No.A2/4546/06, dated 13.04.2009 of the 3rd respondent, the Superintendent of Police, Thoothukudi, Thoothukudi District and quash the same and direct the respondents to include the petitioner's name in the 'C' list of Head Constables fit for promotion as Sub Inspector of Police in Tirunelveli Rural Range for the year 2006 and promote him with appropriate seniority as well as monetary benefits. !For Petitioner ... Mr.A.Thirumurthy ^For Respondents... Mr.T.S.Mohamed Mohideen, Additional Government Pleader :ORDER
Being aggrieved by the order of the Superintendent of Police, Thoothukudi District, dated 13.04.2009, rejecting the request of the petitioner to consider his case for promotion to the post of Sub Inspector of Police for the year 2006, the petitioner has filed the present writ petition to quash the abovesaid order and consequently prayed for a direction to the respondents to include his name in the 'C' list of Head Constables fit for promotion as Sub Inspector of Police in Tirunelveli Rural Range for the year 2006 and to promote him with appropriate seniority, as well as to grant monetary benefits.
2. According to the petitioner, he was appointed as a Police Constable in Tamil Nadu Special Police, third battalion at Manimuthar on 11.01.1982. He was transferred from Tamil Nadu Special Police, third battalion, Manimuthar to Armed Reserve of erstwhile Chidambaranar District (Presently Tuticorin District), vide order of the second respondent, in D.O.557/94/A2/54157/93, dated 23.06.1994 and that he was assigned a new number 1987. He was promoted as Grade I Police Constable from 01.09.2000 and thereafter, he was promoted as a Head Constable from 05.10.2000. According to the petitioner, as per Rule 3(d) of the Tamil Nadu Police Subordinate Special Rules, an Head Constable is eligible to be considered for promotion to the post of Sub Inspector of Police, if he satisfies, the following conditions:
"(i)must have a good working knowledge of English
(ii)must not have completed 53 years of age on the first day of July of the year in which the selection for promotion of Head Constables as Sub Inspector is held
(iii)Must have completed total service of seven years and must have served as Head Constable whether permanent of officiating for a period of not less than four years on the date of commencement of training".
3. According to the petitioner, as per procedure in 2006, the Superintendents of Police would submit a list of eligible candidates, who satisfied the abovesaid conditions to the Range Promotion Board, who, after scrutiny of the lists, shall submit their recommendations to the Deputy Inspector General of Police concerned and thereafter, the said authority would decide the number of Head Constables to be admitted in the written test to be held at a place within the Range. The Range Promotion Board shall thereafter, hold a viva voce examination, including a drill test for those who were successful at the written test and that the selection list would be sent to the respective Deputy Inspector General of Police, for approval and final orders.
4. According to the petitioner, he had completed 45 years of age, completed 24 years of total service and has worked as an Head Constable for more than five years, as on 2006 and hence, he was fully qualified to attend the range promotion board to be selected, as Sub Inspector of Police. He further submitted that the Chairman of Range Promotion Board and the Superintendent of Police, the second respondent herein, vide his proceedings in Na.Ka.No.A2/59850/2005, dated 12.01.2006 issued individual instructions to Head Constables to attend the range promotion Board tests to be held at Centenary Hall Palayamkottai, whereas, the petitioner was not called for the Range Promotion Board tests, on the following dates: 18.01.2006 - written test, 20.01.2006 - Drill test and 23.01.2006- viva voce. Since the petitioner was not included in the range promotion board tests, he made representation on 20.01.2006 to the Chairman of Range Promotion Board and the Superintendent of Police, the second respondent herein, to include him in the Range Promotion Board. But the said representation was not considered. In these circumstances, the petitioner was constrained to file W.P.(MD)No.1053 of 2006 for a Mandamus, directing the respondents therein, to include the name of the petitioner in the 'C' list of Head Constables, fit for promotion as Sub Inspector of Police, in Tirunelveli Rural Range, for the year 2006.
5. By way of an interim direction in W.P.M.P.(MD)No.1141 of 2006 in W.P.(MD)No.1053 of 2006, dated 04.09.2006, a post of Sub Inspector of Police in Tirunelveli Rural Range, was directed to be kept vacant, pending disposal of the abovesaid writ petition. Thereafter, the respondents filed a counter affidavit. In the counter affidavit, it was stated that the petitioner would be allowed in the next Range Promotion Board for the year 2006, subject to the eligibility norms, and if the petitioner is successful his case would be considered for promotion to the post of Sub Inspector of Police, in accordance with the rules.
6. Taking into consideration the reply filed by the respondents, W.P.(MD).No.1055/2006 was disposed of on 04.02.2009, directing the Superintendent of Police, Thoothukudi to consider the representation of the petitioner, dated 20.01.2006 on merits and in accordance with law, in the light of the counter affidavit filed by the respondents.
7. It is the further case of the petitioner that when he was waiting for favourable orders, vide impugned order dated 13.04.2009, the Superintendent of Police, Tuticorin District, his request has been rejected. Inviting the attention of this Court to G.O.Ms.No.986, Home (Police III) Department, dated 02.05.1988, Mr.A.Thirumurthy, learned counsel for the petitioner submitted that when the case of one T.Nesamani was not considered for inclusion in the 'C' list of Head Constables fit for promotion, as Sub Inspectors of Police, drawn in 1985, though he was not subjected to any prescribed tests, the Government have issued orders in G.O.Ms.No.986, Home (Police III) Department, dated 02.05.1988, including him, in the 'C' list of Head Constables fit for promotion, as Sub Inspector of Police. He also placed reliance on a decision of the Tamil Nadu Administrative Tribunal, Madras, in O.A.No.3830 of 1990, dated 12.04.1991, wherein, there was a direction to the respondents therein, to consider the case of Mr.N.Ramasamy, for promotion to the post of Sub Inspector of Police, without conducting any test. He therefore submitted that for the fault of the respondents in not sending the petitioner to the Range Promotion tests, the petitioner should not be deprived of promotion as Sub Inspector of Police. He further submitted that the petitioner is similarly placed to that of Mr.Nesamani and Mr.Ramasamy and hence entitled to claim, similar treatment, at the hands of the respondents, otherwise, there would be a discrimination, offending Article 14 of the Constitution of India. For the reasons stated, he prayed for suitable orders, as prayed for.
8. The Superintendent of Police, Tuticorin, the third respondent in his counter affidavit, has submitted that the petitioner was appointed as a Grade II Police Constable on 11.01.1982, in Tamil Nadu Special Police, third battalion, Manimuthar. On his request, on 20.05.1989, he was transferred to 'Q' Branch CID, Chennai. Subsequently, he was transferred from Tamil Nadu Special Police, III Battalion, vide order of the Chief Office orders No.210632/NGB III(1)/93, dated 30.11.1993 and that he was allowed to continue in Q Branch CID, on other duty basis. The petitioner was upgraded as Grade I Police Constable on 03.11.1995, without prejudice to his being on other duty in 'Q' Branch CID. Similarly, he was also upgraded as Head Constable on 25.07.2000, without prejudice to his being, on other duty in 'Q' Branch CID. According to the third respondent, the petitioner did not serve even a single day either in Armed Reserve or local police of Tuticorin District. The third respondent has further submitted as per Rule 3 (d)(i) of the Special Rules, promotion to the post of Sub Inspector shall be made on the basis of merit and ability, seniority being considered only, where merit and ability are approximately equal.
9. The Deputy Inspector General of Police, Tirunelveli Rural Range, the first respondent herein issued a memo, dated 27.12.2005 to convene a range promotion board, to consider the case of Head Constables, who have completed 7 years of total service and rendered 4 years service of Head constable, for the preparation of 'C' list of Head Constables fit for promotion to the post of Sub Inspector of Police for the year 2005 and to fill up 34 vacancies, under the promotee quota, in Tirunelveli Range, based on the instructions, dated 23.12.2005 by the Director General of Police, Chennai.
10. According to the Superintendent of Police, Tuticorin District, those who had secured not less than 40% marks,(12 out 30 marks) in the written test alone were called for the drill and other tests and viva voce examination prescribed by the Range Promotion Board, on the following dates:
1Publication of list of eligible candidates 4106 2 Written test at Range Head Quarters 18.01.2006 3 Drill test at Range Head quarters 20.01.2006 4 Vivo voce test at Range Head Quarters 23.01.2006 5 Preparation of Recommendation Roll by Range Promotion Board 27.01.2006 6 Finalisation of select list by the Range Deputy Inspector General of Police 30.01.2006 7 Publication of list of candidates selected for pre-promotional training 31.01.2006
11. The third respondent has further submitted that as scheduled, the list of eligible Head Constables for the written test was published on 04.01.2006. Call letters/communications were sent to eligible Head Constables about 1199 Head Constables, to appear for the written test on 18.01.2006. Radio message was also duly sent to all the unit officers, including (Q Branch CID, CBCI, NIB CID, SBCID, Chennai, in Radio Message DTO 281700, dated 28.12.2005 with a request to direct the eligible Head Constables of Tuticorin District, who were on other duty to attend the written test on 18.01.2006.
12. The Superintendent of Police, Tuticorin District has further submitted that as the petitioner was working in Q Branch CID on other duty since 1989, his records were maintained only at the office of the Superintendent of Police, Q Branch CID, Chennai and pay and other allowances were also drawn and paid to the petitioner, by the Superintendent of Police, Chennai. As the petitioner's records were available only at Chennai, his name was not found in the seniority list of Head Constables, Tuticorin District, and hence, the petitioner's name was not included in the list of eligible Head Constables to appear for the written test.
13. According to the third respondent, when the petitioner was aware of call letters being received by his colleagues, to attend the written test on 18.01.2006, he should have made a proper representation to the Superintendent of Police, Tuticorin District and the Chairman, the Range of Promotion Board, the second respondent herein, to include his name, but the petitioner did not do so.
14. The third respondent has further submitted that out of 992 Head Constables who appeared for the written test, 34 Head Constables were selected and included in the 'C' list of Head Constables fit for promotion, as Sub Inspectors of Police, for the year 2005 drawn in Tirunelveli Range office proceeding No.A1/21563/2005, dated 30.01.2006. According to him, till the entire process was over, the petitioner did not make any representation. He further submitted that while filing the counter affidavit before this Court in W.P.(MD)No.1053 of 20006, it was categorically stated that the case of the writ petitioner would be considered in the next range of promotion board for the year 2006, subject to the eligibility norms and if the petitioner comes out successful, in the prescribed tests by securing high marks for the year 2006, he would be considered for promotion to the post of Sub Inspector of Police.
15. The Superintendent of Police, Tuticorin has further submitted that on 30.08.2006, during the debate on Police Demand, regarding the conducting tests for promotion, from the post of Head Constable to Sub Inspector of Police, it was decided to be dispensed with the procedure and an announcement to that effect was made by the Hon'ble Chief Minister, on the floor of the Assembly and hence the system of conducting tests for promotion to the post of Sub Inspector of Police, has been discontinued and that the principle of seniority alone is being adopted. As per the seniority maintained in Tuticorin District, the petitioner is at Sl.No.327 and that the case of the petitioner would be considered for promotion as temporary Sub Inspector of Police, as per the rules/orders in force, as and when the petitioner reaches his turn. In the abovesaid circumstances, the third respondent has submitted that there is no illegality in the order dated 13.04.2009, rejecting the request of the petitioner. For the abovesaid reasons, he has prayed for the dismissal of the writ petition.
Heard the learned counsel appearing for the parties and perused the materials available on record.
16. Record of proceedings shows that the petitioner inadvertently has not impleaded the Government as a party respondent, to this writ petition, at the time of filing of the writ petition. Hence, the petitioner has filed M.P.(MD)No.1 of 2012, to implead the Secretary to the Government (Home Police III) Department, Chennai, as the fourth respondent. As there was no objection, the impleading petition has been ordered.
17. The petitioner has been appointed as Police Constable on 11.01.1982 in Tamil Nadu Special Police III battalion Manimuthar. He has been transferred to Armed Reserve of the erstwhile, Chidamabranar District, presently, Tuticorin District vide order dated 23.06.1994 and assigned Sl.No.1987. It is also the admitted case of the respondents that the petitioner has been deputed from Tamil Nadu Special Police to Q Branch CID, Chennai on 20.05.1989 on his request, on other duty and that, as per chief office proceedings in No.210632/NGB III(1)/93, dated 30.11.1993 and he was allowed to continue in Q Branch CID, on other duty basis, without prejudice in the Unit at Tuticorin District.
18. The petitioner has been upgraded as Grade I Police Constable, on 03.11.1995 and further upgraded as Head Constable on 25.07.2000 respectively, without prejudice to his being on other duty, in 'Q' Branch CID. Proceedings of the Superintendent of Police in D.O.557/94/A2/54157/93, dated 23.06.1994 shows that the place of working of the petitioner, on the date of the said order, has been mentioned as Armed Reserve of erstwhile Chidambaranar District, i.e., in the Parent Department, Tamil Nadu Special Police, III battalion, Manimuthar and a new serial number has been assigned as No.1987. Perusal of the order shows that three police constables, have been retained in Armed Reserve, Chidambaranar District, without prejudice to their continuance in Q Branch CID and without affecting their seniority in Armed Reserve.
19. Proceedings in D.O.No.1940/2003, dated 05.10.2000 of the Superintendent of Police, Tuticorin District upgrading Grade I Police Constables, shows that nearly 159 Grade I Police Constables, have been upgraded, as Head Constables, with effect from 01.09.2000, as they have completed five years of service as Grade I police constables. At that time also, the petitioner was working in 'Q' branch CID. The above two proceedings dated 23.06.1994 and 05.10.2000, respectively, make it abundantly clear that the lien of the petitioner, in the Parent Unit Armed Reserve has been retained and continued. Even as per the averments in the counter affidavit, as stated supra, upgradation of the petitioner as Grade I police Constable and Head Constable have been done without prejudice to his being on other duty in Q Branch CID, Chennai. Though the service records have been maintained in the office of Q Branch CID, Chennai and that the petitioner was paid salary, and other allowances in CBCID, Chennai, while he was working on other duty in 'Q' Branch CID, like, in the case of upgradation to the post of Grade I Constable and subsequently as Head Constable, in the parent unit, notwithstanding the place of working, he should have been considered for inclusion in the 'C' list of Head Constables, fit for promotion, as Sub Inspector of Police in the Parent Unit and allowed to participate in the Range Promotion Board tests.
20. As per Rule 11 of the Tamil Nadu Special Police Subordinate Service Rules, 1978, the absence of a member of the service from duty in the service, whether on leave on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of the service is suspended or not, shall not, if he is otherwise fit, render him ineligible on his return. When the lien has not been terminated in the parent unit, merely because the petitioner absented from duty in another service or unit that would not render him ineligible on his return for reappointment to a a substantive or officiating vacancy in the parent unit. He shall be entitled to be considered on the basis of the seniority in the parent unit.
21. To ascertain as to whether, any of the petitioner's juniors in the parent unit have been included in the 'C' list fit for promotion to the post of Sub Inspector of Police and accordingly, promoted to the said post, learned Additional Government Pleader was directed to get instructions. On this day, when the matter came up for hearing, on instructions, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader, submitted that two of the petitioner's juniors have been promoted as Sub Inspector of Police, for the year 2005. In the light of the categorical admission of the respondents that the seniority of the petitioner has been retained in Armed Reserve, and having regard to the fact that the petitioner has been upgraded as Grade I Constable and as Head Constable in the Parent Unit, Armed Reserve, on the basis of seniority and length of service, and in the absence of any order, terminating the lien in the Parent Unit, the place of working, CBCID, Chennai, ought to have been treated only as deputation, in which case, Rule 11 of the Tamil Nadu Special Police Subordinate Service Rules, 1978, would lend support to the case of the petitioner.
22. In R.L.Gupta Vs.Union of India, reported in (1988) 2 SCC 250, the Supreme Court held that the deputationist, while on deputation remains attached to the parent department, and merely because the deputationist has given his consent to go on deputation, he should not be made to suffer loss of seniority in the parent department unless, there is a valid and specific rule to the contrary or other good reasons for it.
23. In State of Rajasthan Vs.S.N.Tiwari, reported in (2009) 4 SCC 700, the Supreme Court has held that a long period of work outside the cadre would not result in loss of lien in the parent department.
24. In State of Mysore Vs.M.H.Bellary, reported in AIR 1965 SC 868, the Supreme Court interpreted, Rule 50(b) of the Bombay Civil Service Rules. The Supreme Court considered a circular issued by the Government, which ensured to the officer on deputation in another Department, that he would be restored to the position, which he would have occupied in his parent department, had he not been deputed, if the service of the employee on deputation was satisfactory and whether he received increments and promotions in the other department, it stands to reason that he has rendered satisfactory service, and therefore the services rendered in the other department should be deemed to have been rendered in the parent department also, so as to entitle him for promotion which is open, on seniority cum merit basis. This is termed in the official language the ''next below rule'', under which, an officer on deputation should be given a paper promotion and shown as holding a higher post, in the parent department, if the officer next below him there was promoted. The principle laid down by the Supreme Court in M.H.Bellary's case, squarely applies to the facts of this case, for the reason that two of his junios, in Armed Reserve, have been given promotion as Sub Inspector of Police, for the year 2005.
25. In C.Narasinga Vs.State of Andhra Pradesh, reported in (1968) 2 AN WR 48, the Andhra Pradesh High Court held as follows:
"Rights of a person on deputation: Rule 9 of the Andhra Pradesh, (State and Subordinate Services) Rules, makes it abundantly clear that if any member of the service is on deputation or for any other reason he is unable to perform the duty in the parent department, it will not render him ineligible in his term for appointment to the substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer, or for promotion from a lower to a higher category in such service. In the instant case it was held that the service in the police department, should be deemed to have been rendered in the parent department and it entitles him to promotions which are to be given on seniority cum merit basis. Where the Prohibition Department was abolished and the Police Department took over the duties of Prohibition Department and the aggrieved persons who was officer in the Prohibition Department was appointed as Sub Inspector of Police, it was held that the service rendered by the civil servant in the Police Department should be deemed to have been rendered in the parent department on the formation of new Excise and Prohibition Department".
26. In Union of India Vs. Pushpa Rani, reported in (2008) 9 SCC 242, the Supreme Court has held that the word "promotion" means advancement, preferment in honour, dignity, rank, grade. Promotion thus, not only covers advancement to higher position or rank, but also implies advancement to a higher grade. In service law, the word "promotion" has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post. As rightly contended by the learned counsel for the petitioner, when the petitioner's juniors have been considered for promotion to the post of Sub Inspector of Police, the right of the petitioner for advancement, dignity and preferment honour, has been denied, when the petitioner was on other duty in CBCID, without prejudice to his seniority in the Parent Unit, Armed Reserve.
27. In Union of India Vs.Sangra Keshari Nayak reported in (2007) 6 SCC 704, the Supreme Court held that promotion is not a fundamental right. But, right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate's concerned, however, must be left at the hands of the Departmental Promotion Committee, but the same has to be determined in terms of the rules, applicable therefor.
28. Material on record shows that even though the petitioner was working in 'Q' branch CID, Chennai Branch, on the basis of the seniority, in Armed Reserve, which was undisturbed, the petitioner has been upgraded as Grade-1, Police Constable and further as Head Constable in Armed Reserve, thereby, reiterating that the lien continued in the parent department. Admittedly, the petitioner has satisfied all the eligibility criteria prescribed under Rule 3(d) of the Tamil Nadu Special Police Subordinate Service Rules, 1978. As per the counter affidavit that the entire service records were maintained in the Superintendent of Police, Chennai, and that therefore, the name of the petitioner was not found in the seniority list of Tuticorin District and hence, he was not included in the list of eligible candidates for the written and other tests. But quite contrary to the same, it is also the contention of the respondents that the petitioner was upgraded as Grade I Constable and as Head Constable in the Parent Unit, Armed Reserve, as per the seniority and length of service, notwithstanding the fact that the petitioner was in CBCID, Chennai. Therefore, the reason assigned by the respondents for not including the name of the petitioner in the 'C' list of Head Constables fit for promotion as Sub Inspector of Police, cannot be countenanced.
29. In the light of the Rule 11 of the Tamil Nadu Special Police Subordinate Service Rules, 1978 and the decisions of the Apex Court referred to, in the foregoing paragraphs, the Superintendent of Police, Tuticorin District, ought to have intimated the petitioner, either by a call letter or a radio message, which was given to the other eligible Head Constables of Tuticorin District, who were on other duty or special duty, as the case may be.
30. Police Department is a disciplined force and without any specific call letter or radio message, the petitioner certainly, cannot be relieved from 'Q' Branch CBCID, Chennai, to attend the tests. The contention of the third respondent that when call letters were received by his colleagues, the petitioner should have made a proper representation to the second respondent to include him in the 'C' list fit for promotion as Sub Inspector of Police in Tirunelveli Rural Range for the year 2005 and as there was a failure on the part of the petitioner, the department should not be blamed, cannot be countenanced. When the department has issued call letters and by a Radio message, directed all the Unit Officers, to relieve the eligible Head Constables, on other duty to attend the Range Promotion Test conducted for inclusion, in the year 2005, the department ought to have issued necessary instructions to relieve the petitioner also, so as to enable him to attend the tests. Shifting the blame on the petitioner cannot be accepted. Failure to exercise the duty and to consider all the eligible candidates for inclusion in the 'C' list of Head Constables fit for promotion cannot be shifted on the petitioner, by stating that he had not represented in time.
31. G.O.Ms.No.986, Home (Police III) Department, dated 02.05.1988 relied on by the petitioner is extracted hereunder:
"Police-Tamil Nadu Subordinate Service - Thiru.T.Nesamani, Head Constable for Railway Police, Madras - inclusion of name in the 'C' list of Head Constables fit for promotion as Sub Inspectors drawn in 1985 in relaxation of Rules - Orders - Issued Home (Police III) Department G.O.Ms.No.986 dated 02.05.88
(i) From Thiru.T.Nesamani, Head Constable, Railway Police, Madras petition, dated 29.06.87.
(ii) From the Director General of Police letter R.C.No.182447/MGBI(2)/87, dated 02.09.87.
ORDER Thiru.T.Nesamani was enlisted as Grade II Police Constable on 15.08.1973 in Madras City Police. At the time of drawl of the panel of Police Constables fit for promotion as Head Constables by the Madras City Police for the year 1976, he was however, not called to attend the test even though his batchmates were called to attend the test. Consequently, he was not included in the promotion panel when his juniors were included. On his appeal to the Director General of Police, he got his name included in the 'C' list of Grade II Police Constables fit for promotion as Head Constables for the year 1976 in Madras City Police with the seniority. Though he got his actual promotion as Head Constable on 30.03.83, he was subsequently direct to have been promoted as Head Constable for all purposes with effect from 04.02.80, ie., the date on which his immediate junior in the 1976 list was promoted as Head Constable in Madras City Police by virtue of his restoration of seniority in the promotion list. Later he was transferred to Railway Police which comes under the Chengalpattu Range for purpose of promotion to the rank of Sub Inspector. Subsequently, in January 87, an order was also issued by the Superintendent of Police, Railway Police to the effect that his probation as Head Constable was deemed to have been complete on 03.02.1982 a.m.
2.During December, 1985, a promotion test for the drawl of panel of Head Constables fit for promotion as Sub Inspectors was conducted in Chengalpattu Range. Since Railway Police District is a constituent of the promotion Board of Chengalpattu Range, all Railway Police Head Constables, who were approved probationers with four years of service were eligible to compete in the promotion test along with other persons in Chengalpattu Range. Since he possessed the prescribed qualification, he expressed his desire to compete in the test. However, he was not called for the test. He has now requested the Government that his name may be ordered to be included in the 'C' list of Head Constables fit for promotion as Sub Inspectors drawn in 1985 in Chengalpattu Range, without any test, if need be, by relaxing necessary rules for the purpose.
3.The Director General of Police has not brought to notice that the Deputy Inspector General of Police, Chengalpattu Range has admitted the revision of seniority as claimed by the individual and has also stated that eight juniors who were promoted as Head Constables after 04.02.80 were permitted to attend the promotion test held in 1985. But none of them had made the required grade and was included in the list. He has also stated that it is also a fact that the petitioner's probation as Head Constable was ordered to be completed on 03.02.82 a.m. by the Superintendent of Police has stated that though the seniority was restored tot he petitioner, since the individual had not completed four years of service in the post of Head Constable on the crucial date of his actual promotion to the post of Head Constable being 30.03.1983, he was not allowed to appear in the test in 1985.
4.The Government have carefully examined the matter in detail. The individual first not called for promotion test inclusion in the panel of Police Constables fit for promotion as Head Constables for the year 1976. On appeal, the Director General of Police subsequently ordered the inclusion of the name of the individual in the 'C' list of Grade II Police Constables for the y ear 1976 (i.e, retrospectively) at the appropriate place giving his due seniority. Because of this , the individual who should have not his actual promotion as Head Constable on 04.02.80 itself along with promotion of his juniors,, got his actual promotion as Head Constable only on 30.03.1983. Consequent on his success in the appeal to the Director General of Police, the individual was brought to the list of Head Constables from 04.02.80 without monetary effect on par with his juniors and also deemed to have completed his period of probation as Head Constable on 3.2.82 a.m. The Government therefore, considered that he is eligible for inclusion in the 'C' list of Head Constables fit for promotion as Sub Inspectors drawn in 1985. The Government also considered that he need not be subjected to the prescribed test before inclusion of his name in the said 'C' list.
5.In exercise of the powers conferred by rule 39 of the Special Rules for Tamil Nadu Police Subordinate Service contained columns III of the Tamil Nadu Services Manual, 1986, the Governor of Tamil Nadu hereby relaxes the provisions of rule 3 (d)(iii) of the said Special Rules so far as it relates to writing of test including written, drill and viva voce in favour of Thiru.T.Nesamani, Head Constable of Railway Police, Madras so as to enable his name to be included in the 'C' list of Head Constables, drawn up in 1985 in Chengalpattu Range at the appropriate place giving him his due place of seniority without writing the promotion test.
(By order of the Governor)"
32. In the abovesaid Government order though Mr.T.Nesamani was not called for tests, due to the reasons stated therein, the Government in exercise of the powers conferred under rule 39 of the Special Rules, for Tamil Nadu Police Subordinate Service contained in Columns III of the Tamil Nadu Services Manual, 1986, have relaxed the provisions of rule 3(d)(iii) of the said Special Rules, insofar as it relates to written test, drill and viva voce, in favour of the said individual, so as to enable his name to be included in the 'C' list of Head Constables, drawn in 1985, at the proper place.
33. Under similar circumstances, in O.A.No.5549 of 1997, in the matter of N.Ramasamy Vs. Director General of Police, Chennai, the Tamil Nadu Administrative Tribunal, Chennai, vide order dated 08.01.1998, has directed the applicant therein to be included in the 'C' list of Head Constables for promotion to the post of Sub Inspector of Police.
34. Now, the system of conducting tests for promotion to the post of Sub Inspector has been discontinued and the principle of seniority alone is being adopted, since 2006. The denial of the petitioner's claim for promotion is for the year 2005, with reference to the procedure and the relevant rules. If for any unjustified reason, right to be considered for promotion is denied, then the same has to be adjudicated only with reference to then existing procedure and the rules.
35. Even perusal of the order made in W.P.No.1053 of 2006, dated 04.02.2009 shows that when the petitioner has sought for a mandamus to direct the respondents therein, to include his name in the 'C' list of Head Constables, fit for promotion as Sub Inspector of Police in Tirunelveli Rural Range, this Court vide order dated 04.02.2009, has directed the representation dated 20.01.2006 submitted to the Superintendent of Police, Tuticorin District, the third respondent therein, to be considered. The representation is unambiguous and it is only with reference to non inclusion of the petitioner therein, in the 'C' list of Head Constables, fit for promotion to the post of Sub Inspector of Police for the year 2005 and it is not with reference to the subsequent method of promotion. Denial of the petitioner to include in the 'C' list of Head Constables, fit for promotion to the post of Sub Inspector of Police, is purely due to the fault of the respondents, when admittedly, the petitioner has rendered continuous service in 'Q' Branch CID, Chennai. That apart, as two of the petitioner's juniors have been included in the 'C' list of Head Constables fit for promotion to the post of Sub Inspector of Police for the year 2005, in the light of the decisions of the Apex Court extracted supra, the petitioner is entitled to be considered for promotion. However, the system of selection by holding written test, drill test etc., has been dispensed with by the Government in G.O.Ms.No.986, Home (Police III) Department, dated 02.05.1988 and that the petitioner cannot be directed to undergo the process of selection for the subsequent year.
36. In the light of the above decisions, the case of the petitioner ought to have been considered as done in the case of Mr.T.Nesamani and Mr.N.Ramasamy, Head Constables who have been directed to be included in 'C' list of Head Constables, fit promotion to the post of Sub Inspector of Police in the year 1985, even without reference to the tests.
37. The Superintendent of Police, Tuticorin District, the third respondent herein shall send necessary proposals, for relaxation of Rule 3(d)(iii) as done in the case of Mr.T.Nesamani and Mr.N.Ramasamy, Head Constables and on receipt of such proposals, the Secretary to the Government, Home Department, who has been impleaded as the fourth respondent, shall pass appropriate orders, relaxing the rule in favour of the petitioner, so as to include his name in the 'C' list of Head Constables fit for promotion to the post of Sub Inspector of Police for the year 2005 for Tuticorin District.
38. As regards backwages, the petitioner has been denied consideration and promotion as done in the case of Mr.Nesamany and Mr.Ramasamyand it is not the fault of the petitioner. The question of No Work, No Pay, cannot be applied to the case of the petitioner. The said issue has been considered in V.Mani v. The Secretary to Government, reported in 2008 (2) CLT 241, wherein, at paragraphs 13 to 17, it has been held as follows:-
13. The legal principles which emerge from the decisions cited supra are that the normal rule of "No work, No pay" is not applicable to cases where the employee although was willing to work, is kept away from work by the authorities for no fault of him. The principle of "No Work No Pay" cannot be accepted as a Rule of Thumb, in a case where the administration has wrongly denied his due, the Government servant/employee should be given the benefits, as per the Fundamental Rules, including monetary benefits, subject there being any change in law or some supervening factors. As held by the Division Bench in Munivenkatappa's case, once it is found that the decision of the respondent is illegal, it has to held that the respondents have illegally prevented the employee from discharging his duty and consequently he is entitled to the emoluments for the period for which he was not allowed to perform his duties.
In all these decisions, the Apex Court as well as this Hon'ble Court have held that if the government servant or employee is denied of a benefit or deprived of his legitimate right due to the fault of the department/employer, then the government servant/employee should not be made to suffer, but for specific circumstances, such as change in law or some supervening circumstances.
39. Some of the decisions considered by this Court in V.Mani's case are extracted hereunder:-
(i) The Supreme Court in Union of India v. K.V.Janakiraman, reported in 1991 SC 2010 , in Paragraph 7 of the judgment, held as follows:
"The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.17(1) will also be inapplicable to such cases."
At this juncture, it is relevant to extract Section 17(1) of the Fundamental Rules.
"Subjects to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."
(ii) In Burn Standard Co. Ltd., and another v. Tarun Kumar Chakraborthy and others reported in 2003 SCC (L & S) 1015, the first respondent therein was kept out of service and not permitted to work. The appellants contended that due to pendency of a case filed by the association, they bona fide believed that they could not permit him to join duty. The Supreme Court accepting the contention of the respondent therein, employer held that if there was no impediment in law in permitting the employee in joining the duty, then there is no justification in denying the salary to him. Accordingly, the Court, directed the appellant to pay the salary and other emoluments for the period not covered by the litigation and interim orders.
(iii) In Srikantha S.M. v. Bharath Earth Movers Ltd., reported in 2005 (8) SCC 314, an employee submitted his resignation to relieve him from duties as per the Rules. The employer-company accepted his resignation on the same day and directed him to be relieved with "immediate effect". However, on the same day, the Company granted him Casual Leave from 05.01.1993 to 13.01.1993 and 14.01.1993 being a holiday, informed him that he would be relieved by the close of working day, i.e., on 15.01.1993. In the evening of that day, the company relieved him. However, before that day, the employee sent a letter to the Company, withdrawing his resignation. The Supreme Court, in such circumstances, held that the employee remained in service upto the postulated day and the company was bound to give effect to the withdrawal of resignation.
In the above reported judgment, the employee was not allowed to work after the postulated day and therefore, he filed a Writ Petition, challenging the action of the employer, relieving him from service. The employee contended that the resignation had already been withdrawn and therefore, he should be permitted to continue in service. The Writ Petition was dismissed, on appeal, the Division Bench also concurred with the view of the learned Single Judge. On further appeal, the Supreme Court reversed the decision of the High Court and held that the employee had withdrawn his resignation before it was given effect to by the Employer and therefore, granted the relief prayed for, by the employee. As regards backwages, the Company contended that since the employee did not work for the later period, he would not be entitled to salary on the principle of "No work No pay". Rejecting the submission made on behalf of the Company, the Supreme Court at Paragraph 29 of the judgment held as follows:
"We must frankly admit that we are unable to uphold the contention of the respondent company. A similar situation had arisen in J.N.Srivastava and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefit were granted to him. In Shambhu Murari Sinha II also, this Court held that since the relationship of employer and the employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta inspite of specific provision precluding the government servant from withdrawing notice of retirement this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits."
(iv) In Punjab SEB v. Kuldip Singh reported in 2005 (13) SCC 362, the Supreme Court considered the case of Junior Engineer, who was not promoted to the post of Assistant Engineer (AE) by the State Electricity Board, as he had not taken the departmental examination. Subsequently, he passed the examination. One S was appointed as Assistant Engineer and his appointment was made subject to the rights of a candidate who may be appointed in regular course. When the said Junior Engineer (respondent therein) acquired qualifications after passing the departmental examination, neither S was reverted nor the respondent was promoted as Assistant Engineer. However, S preferred a suit, in which, interim injunction was granted restraining the State Electricity Board from reverting him to the post of Junior Assistant. Ultimately the suit came to be dismissed. On the Writ Petition filed by the respondent, the High Court directed the Electricity Board to decide the dispute on merits. Thereafter, the respondent was promoted to the post of Assistant Engineer with effect from 14.12.2001, instead of 20.03.1990, being the date, he had passed the departmental examination. A second Writ Petition was filed by the respondent, claiming notional promotion with effect from 20.03.1990 with all backwages and consequential benefits with interest at the rate of 18% until the payment was made. Before the High Court, the State Electricity Board contended that the respondent was not entitled to notional promotion or backwages for any period prior to 2001, as the number of posts had been reduced by way of amendment to the Rules. The second Writ Petition was also allowed and the High Court directed the Electricity Board to create a supernumerary post and pay all arrears of salary together with interest at the rate of 9% within two months from the date of passing of the order. On appeal, the Supreme court declined to accept the contention of the State Electricity Board and allowed the appeal only to the extent of rate of interest.
(v) In State of Kerala v. E.K.Bhaskaran Pillai reported in 2007(6) SCC 524, the Supreme Court, while deciding the correctness of the judgment of the Kerala High Court, directed that the respondent therein would be entitled to higher pay on account of retrospective promotion. At Paragragh 4 of the judgment, the Supreme Court held as follows:
"So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facts which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full backwages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in the criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes, in the matter when the person in superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case the Court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard- and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."
In the above reported case, persons junior to the respondent therein were promoted to the higher post, whereas, he was wrongly denied promotion. Thereafter, he was promoted with retrospective effect, without pay on the basis of "No work no pay". Learned Single Judge refused to grant him monetary benefits in the promotional post with retrospective effect. In the Review application, benefit was given from the date, when he filed the Original Application in the High court, i.e., 15.06.1992.
(vi) A Division Bench of this Court in Munivenkatappa v. State Bank of India, reported in 2007 (2) CTC 135, considered a case where the request of the appellant therein for voluntary retirement was unilaterally treated as resignation and by applying the principle of "No work No pay", the employer refused to give him the monetary benefits. The Division Bench of this Court at Paragraph 12, held as follows:
"Once it is found that the decision of the respondents is illegal, it has to be held that the respondents have illegally prevented the petitioner from discharging his duties from 01.10.1999 and if the respondent's illegally prevented the petitioner from attending to the duties, respondents are bound to pay salary fro the period for which the petitioner was not allowed to perform his duties."
40. As the petitioner has been denied consideration for promotion, the respondents shall settle the pay and other allowances applicable to the post of Sub Inspector of Police to the petitioner from the date on which the petitioner's juniors came to be promoted, within a period of four weeks from the date of receipt of a copy of this order.
41. The writ petition is allowed in the above terms. No costs.
sms To
1.The Deputy Inspector, General of Police, Tirunelveli Rural Range, Tirunelveli-11.
2.The Chairman of Range Promotion Board and the Superintendent of Police, Thoothukudi District, Thoothukudi.
3.The Superintendent of Police, Thoothukudi District, Thoothukudi.
4.The State of Tamil Nadu, Rep.by its Secretary to Government, Home(Police III)Department, Fort St., George, Chennai-600 009.