Madras High Court
S.Ravindran vs State Of Tamil Nadu on 14 December, 2016
Author: P.Kalaiyarasan
Bench: A.Selvam, P.Kalaiyarasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.12.2016
CORAM:
THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
Writ Appeal Nos.261 and 1525 of 2016
and
C.M.P.Nos.7137, 4375 and 18972 of 2016
1.S.Ravindran
2.S.Jayachandran
3.Paul Pandian
4.K.Govindaraju .. Appellants in
W.A.No.261 of 2016
1.The State of Tamil Nadu,
represented by the Secretary to
Government, Home Department,
Secretariat, Chennai 9.
2.The Director General of Police,
Tamil Nadu,
Chennai 4.
3.The Additional Director General of Police,
Armed Police,
Chennai 10. ... Appellants in
W.A.No.1525 of 2016
versus
1.State of Tamil Nadu
rep. By Secretary to Government,
Home Department,
Fort St. George,
Chennai 9.
2.The Director General of Police,
Tamil Nadu, Chennai 4.
3.The Additional Director General of Police,
Armed Police, Chennai 10.
4.M.Arumugam
5.A.Karmegam
6.S.Manimaran
7.S.Selvakumar
8.P.Thirunavukarasu
9.J.Augustine Francis
10.R.Venkatachalam
11.M.Patel
12.V.Jayaraman
13.E.Jayaratchagan .. Respondents in
W.A.No.261 of 2016
1.M.Arumugam
2.A.Karmegam
3.S.Manimaran
4.S.Selvakumar
5.P.Thirunavukarasu
6.S.Ravindran
7.S.Jayachandran
8.P.Pal Pandian
9.K.Govindarasu
10.J.Augustine Francis
11.R.Venkatachalam
12.M.Patel
13.V.Jayaraman
14.E.Jayaratchagan ... Respondents in
W.A.No.1525 of 2016
Writ Appeals filed under Clause 15 of Letters Patent, to set aside the order dated 21.01.2016 made in W.P.No.30956 of 2013 passed by this Court.
W.A.No.216 of 2016
For Appellants : Mr.R.Thiyagarajan, senior counsel for
Mr.G.Saravanakumar
For Respondents : Mr.S.T.S.Moorthy, AAG assist by
Mr.P.S.Siva Shanmugasundaram, Spl.G.P. for RR1 to 3
Mr.R.Singaravalen, senior counsel for
Mr/s.M.Srividhya for RR4 to 7
Mr.P.Raja for R9
Mr.Ravi Anantha Padmanabhan
for RR 8 and 10 to 13
W.A.No.1525 of 2016
For Appellants : Mr.S.T.S.Moorthy, AAG assist by
Mr.P.S.Siva Shanmugasundaram, Spl.G.P.
For Respondents : Mr.R.Singaravalen, senior counsel for
Mr/s.M.Srividhya for RR1 to 4
Mr.R.Thiyagarajan, senior counsel for
Mr.G.Saravanakumar for RR5 to 9
Mr.P.Raja for R10
Mr.Ravi Anantha Padmanabhan
for RR9, 11 and 14
COMMON JUDGMENT
(Judgment of the Court was delivered by P.KALAIYARASAN, J.) These two writ appeals have been filed one by private respondents and the other by the State, seeking to set aside the order of the learned Single Judge, passed in writ petition in W.P.(MD) No.30956 of 2013 dated 21.01.2016.
2.Brief facts relevant for disposal of these appeals are as follows:
(i)The Tamil Nadu Special Police consists two categories viz., General Line and Special Line. The General Line forms the major portion of the force. The other group viz., (i) Motor Transport (ii) Signal Group (iii) Armoury/Re Broning (iv) Band and (v) Miscellaneous posts such as Carpenters, Cobblers, Tailors etc. constitute special group. In the Special Line group, except the Armoury, all other categories have the posts from Police Constable to Inspector. In Armoury, there is no post of Inspector and the highest rank stops with the Sub Inspector. In the general line, Police Constable gets elevated up to the rank of Inspector through the ranks viz., Naik, Havildar and Sub Inspector of Police. In Armoury line, Police Constables get elevated up to the rank of Sub Inspector through the rank of Havildar.
(ii)The writ petitioners were appointed as Police Constables on 15.09.1981, 01.08.1984, 25.05.1988 and 30.04.1989 and they were promoted to the post of Sub Inspector of Police in 1999, 10.01.2001, 18.03.2005 and 18.09.2006 respectively. The first and second writ petitioners were promoted to the post of Inspector of Police on 06.03.2011 and 20.12.2013 respectively.
(iii)The appellants in W.A.No.261 of 2016, who are private respondents in the writ petition were appointed as Police Constables along with the writ petitioners, opted to the special line viz., Armoury. The private respondents joined service on 15.09.1981, 01.08.1984 and 27.05.1988 and were promoted as Inspector of Police on 11.08.2006, 17.08.2006 and 21.08.2006 respectively. Thus, the personnel of Armoury have been placed in an advantageous position, particularly when they rejoined the general line, later in the rank of Inspector. Thus, the personnel of Armoury get quicker promotion to the post of Inspector. They get promotion to the post of Assistant Commandant also much earlier than that of police personnel in general line. Rule 24(b) of Tamil Nadu Special Police Subordinate Service Rules, 1978, would convey that on coming back to the general line, it is the date of appointment in the post of Constable in general line alone has to be taken into account and not the date of promotion to the post of Sub Inspector of Police in Armoury.
(iv)Realizing the anomalies in promotion to the personnel in general line, the Director General of Police sent a proposal to the Government to insert sub rule (f) in Rule 24. The Government issued amendment to special rules for Tamil Nadu Special Police Subordinate Service in G.O.Ms.No.1710 dated 23.11.2007 inserting rule 24(f), wherein, it has been clarified that a person in the specialist category shall not have any advantage in the general category by virtue of the promotion, if any, earned by him in the specialist category in the event of his transfer or reversion from specialist category to general category either at the option or otherwise.
(v)The appellants in writ appeal No.1525 of 2016, without taking note of the above amendment to rule 24 of the Tamil Nadu Special Police Subordinate Service Rules, 1978, are attempting to promote the candidates to the post of Inspector of Police or Assistant Commandant on the basis of the date of their promotion to the post of Sub Inspector of Police or the Inspector of Police. Therefore, the writ petitioners filed the writ petition, praying to issue a writ of mandamus, directing the authorities to draw the panel for further promotion to the post of Inspector or Assistant Commandant by taking note of the date of initial appointment in general line as per rule 24(f) of the Tamil Nadu Special Police Subordinate Service Rules 1978.
(vi)The appellants in W.A.No.261 of 2016, who are private respondents in the writ petition, contended in the writ petition that they were appointed as Police Constables and option was given to all the personnel appointed for transfer to armoury line, which requires ten months basic training in maintenance of all weapons, maintained by the Tamil Nadu Police Service. They have to necessarily undergo electrical, mechanical, engineering course for six months for Grade II and for one year and 15 days for Grade III. Therefore, seniority is maintained separately in each battalion. Thus, there was no post of Inspector in the armoury, wherein, category of Sub Inspector of Police, Armoury has been merged with the category of Sub Inspector in the general category for the purpose of promotion to the post of Inspector of Police. The Division Bench of this Court in Damodaran and others Vs. Paul has also upheld such merger. The insertion of rule 24(f) cannot be made use as the appellants/private respondents were reverted to the general line even before the date of amendment of the said rule.
3.The learned Single Judge, after considering the contention of both sides, allowed the writ petition, directing the authorities to draw the panel for further promotion to the post of Inspector of Police or Assistant Commandant, as per Rules 24(b) and 24(f) of the Tamil Nadu Special Police Subordinate Service Rules, 1978 and promote the eligible personnel from the said panel. Aggrieved by the order, the private respondents as well as the Government filed these writ appeals. Since both the appeals arise out of the same order and issues to be decided are one and the same, common judgment is passed.
4.The learned counsel for the appellants in W.A.No.261 of 2016 contends that the writ petition itself is barred by limitation under rule 35(f) of the State and Subordinate Service Rules, as the writ was filed long after the promotion of the appellants and amendment of the rules. Since the appellants have been promoted well before the introduction of rule 24(f), the said rule cannot take away the right of promotion of the appellants as Assistant Commandants, on acquisition of qualification. As per rule 4(c) of the Special Rules for Tamil Nadu Police Service as amended in G.O.Ms.No.734 dated 08.11.2011, the writ petitioners are not possessing requisite qualification. The Division Bench of this Court, in Damodaran and others Vs. Paul reported in 1991 WLR 536, has held that the special category of Sub Inspector, Armoury has been merged with the category of Sub Inspector of Police in the general category for the purpose of promotion to the post of Inspector and any interpretation otherwise will be violative of Article 16(1) of the Constitution of India and the merger of category of Sub Inspector, Armoury with the category of Sub Inspector in the general line has been accepted by the Division Bench in view of the Rule procedure. The finding of the Honourable Single Judge has paved way for reopening of a settled seniority of the appellants herein to be unsettled for a decade.
5.The learned Additional Advocate General reiterates the arguments of the appellants in W.A.No.261 of 2016 and emphasized that Rule 24(f) can be given prospective effect and not retrospective effect. He also contends that Rule 24(b) and 24(f) relates to fixation of seniority only for the personnel, who opted for transfer from one category to another. According to rule 7(c) of Tamil Nadu Special Police Subordinate Service Rules 1978, promotion in all categories from Police Constables to Havildar shall be treated as unit wise (Battalion wise) and from Sub Inspector onwards,m promotion shall be according to Range seniority, The writ petitioners had not challenged the validity of G.O.Ms.No.1710 dated 23.11.2007. They have not challenged the promotions of the private respondents. If the order of the single Judge is implemented, it will lead to large number of litigation by the affected personnel, including the general category personnel.
6.The learned counsel for the respondent(writ petitioners) contends that the personnel in general line have to undergo many training courses viz., (i)Small Arms Cadre Course (ii)Foot Drill Cadre Course (iii)Physical Training and Unarmed Combat Course (iv)Field Craft Course, (v)Drill Instructor Course and (vi)Map Reading and Jungle Training for getting promotion. Violating the rule 35(a) and 35(aa) of Tamil Nadu State and Subordinate Service Rules, the authority cannot effect promotions illegally in the general line contrary to the Rule 24(b) and 24(f) and also proviso to rule 35(a) and 35(aa). The learned single Judge, after analyzing the rule and provisions and rival submissions made on either side, has rightly allowed the writ petition and the order of the learned single Judge need not be interfered with.
7.The learned counsel for the respondents 10 and 11 submits that R10 and 11 are placed above the appellants in the promotion panel for the post of Assistant Commandants and still they support the contentions of the writ petitioners.
8.The admitted facts are that the appellants/private respondents in the writ petition, though appointed as Constables along with the writ petitioners, they opted Armoury Line and got quicker promotion up to the cadre of Sub Inspector. They were also promoted as Inspector of Police six years and seven years earlier to such promotion of the writ petitioners. The government amended the rule of Tamil Nadu Special Police Subordinate Service Rules, 1978 in G.O.Ms.No.1710, Home Department, dated 23.11.2007, by introducing Rule 24(f), wherein, a personnel in the specialist category shall not have any advantage in the general line category by virtue of the promotion and the seniority at the time of entry into the Tamil Nadu Special Police Subordinate Service shall be taken into account for determining the seniority. There is also no dispute that the Constables appointed in general line have to undergo many training courses such as (i)Small Arms Cadre Course (ii)Foot Drill Cadre Course (iii)Physical Training and Unarmed Combat Course (iv)Field Craft Course, (v)Drill Instructor Course and (vi)Map Reading and Jungle Training. Similarly, the Constables selected in general line and opting the specialist line viz., Armoury have also to undergo ten months basic training at the Regimental Centre and have to necessarily underto Electrical, Mechanical and Engineering Course for Grade II for six months and for Grade III for one year and 15 days in connection with handling the arms. Thus, both personnel in general line as well as Armoury line have to undergo training in the respective fields. The prayer in the writ petition is to issue a writ of mandamus, directing the authority to draw the panel for further promotion to the post of Inspector or Assistant Commandant from the post of Sub Inspector or Inspector respectively in Tamil Nadu Special Police Subordinate Service by taking note of the date of initial appointment in general line of the said service, as per Rule 24(f) of the Rules.
9.Countenancing the arguments of the appellants, the learned senior counsel for the respondents vehemently argued that how injustice is being done to the writ petitioners by giving accelerated promotion to the personnel opted for Armoury Line, though they were appointed along with the writ petitioners. The argument of the learned senior counsel for the respondents that the promotion to the appellants is not inconsonance with Rule 24(b) does not only exceed the prayer, but also out of ambit of the said rule as well as Rule 35(a) and 35(aa) of Tamil Nadu State and Subordinate Service Rules. Rule 24(b) relates to the seniority of a person, who transfers from one category to another category carrying the same pay or scale of pay. Rule 35(a) and 35(aa) of Tamil Nadu State and Subordinate Service Rules deal with the seniority of the initial appointment at feeder category. Recruitment and promotion are two different and distinct factors in service law. Recruitment is the stage of entering into the service, whereas, promotion is benefit derived in the service. Rule 24 of Tamil Nadu Special Police Subordinate Service Rules 1978, is analogous to Rule 35(a) and 35(aa) of the Rules. Rule 24(f) of Tamil Nadu Special Police Subordinate Service Rules deals with transfer of a person from one category to another category carrying the same pay or scale of pay. There are specific separate rule provisions with respect to promotion in Tamil Nadu Special Police Subordinate Service Rules. Therefore, there need not be any confusing in applying Rule 24(b) of the Rules.
10.Rule 7 and 129(b) of Tamil Nadu Special Police Subordinate Service Rules, 1978 deal with promotion and the same is extracted herein:
7.Appointments other than temporary appointments, that is regular appointments: (a) appointments to the posts specified in column (1) of the Table below shall be made in accordance with the method specified in the corresponding entries in column (2) thereof.
THE TABLE Name of Post Method Method (1)(a) Inspector-(1) (1) Promotion from Inspector.
Adjutant: (2) If no qualified and suitable Inspector is available, direct recruitment or recruitment by transfer from any other service.
(b) Inspectors: (1) Promotion from Sub-Inspector.
or
(2) If no qualified and suitable Sub Inspector is available direct recruitment; of recruitment by transfer from any other service.
(c) Inspectors: Promotion from Sub Inspector of
(Radio) Radio Group.
(d) Motor Transport Officer
(Inspector)
G.O.Ms.No.1348, Home, dated 30.4.1980 (C.O.F. DIS.No.l51939/Ra-4/79. dated 2.5.1980).
.............
.............
7(c).Promotion in all categories up to Havildar shall be treated as unit wise and combined seniority on the Range basis for promotion from Havildar and upwards. In respect of temporary battalions all promotions ordered in the temporary battalions up to Havildar in respect of the personnel on other duty from permanent battalion may be regularised by the permanent unit, only if the individuals is due for such promotion had he continued in the parent unit. Otherwise his promotions in the temporary battalions will be purely on temporary basis.
7(d).The posts of specialists mentioned in rule 3 shall constitute separate categories from those of non specialists and promotion to the former shall be made independently in each category subject to the provisions of sub rules (b) and (c). Rule 129(b) of Tamil Nadu Special Police Manual All other promotions, i.e. Promotions to the ranks of Havildar, Naik and Lanced Naik in the general and specialist categories shall be made on a battalion basis with due regard to seniority, efficiency and suitability where other qualifications are equal the Senior in service will be selected for promotion.
11.Thus, as per above rules, seniority is maintained unit wise upto Havildar and after that range seniority and promotions are also effected not merely on the basis of the seniority, but with due regard to efficiency and suitability. As provided in the above rules, promotions are given separately to the general line as well as the specialist category and since there is no post above the Sub Inspector in the armoury line, the same get merged in the general line for further promotion. The issue of promotion to the Inspector between the general category and specialist category was considered by the Division Bench of this Court in Damodaran V. Paul reported in 1991 Writ L.R. 436. The Division Bench has already held that the Sub Inspectors in armourer are to be put in the common pool, since the rule envisaged a common pool and promotion is to be given. The Division Bench held as follows:
7. ....... The question before us, therefore, are, (1) whether the Sub Inspector Armourer and Sub Inspector in the General Category together constitute a common pool from which promotion to Inspector will be made (2) If Sub Inspector Armourer and Sub Inspector in the General Category constitute a common pool, whether Sub Inspector Armourer vis-a-vis Sub Inspector in the General Category will reckon his seniority with reference to the original appointment as Constable irrespective of the promotions already earned and their becoming Sub Inspector Armourer much before those who were in the General Category.
8. There can hardly be any dispute to the proposition that a right to be considered for promotion is a fundamental right guaranteed to every citizen that there cannot be a valid discrimination in the matter of future promotion among the persons of one category, class or group or else it would violate Articles 14 and 16(1) of the Constitution of India and that any denial of promotion without any just or valid cause would violate Articles 14 and 16(1) of the Constitution of India: Vide Brij Mohan Singh v. State of Punjab and Ors. 1968 S.L.R. 723;RoshanLalv. Union of India (1967)1 S.L.R. 832; State of Mysore v. Krishna Murthy ; State of I & K v. T.N. Khoza ; Teerth Narain v. State of Bihar A.I.R. 1987 S.C. 1195 and Council of Scientific & Industrial Research v. K.G.S. Bhatt.
12.Thus, the Division Bench, after analyzing rule provisions has held that the Sub Inspector in armoury category is put in a common pool as per rules and therefore, they are to be considered for promotion in general line. It was settled principle that inter-se seniority in the lower rank will have no effect on the inter-se seniority in the superior rank and the same is still settled principle.
13.The learned senior counsel for the respondents argued that in the above ruling, the appellants, who succeeded the case were seniors to that of the respondents in general line. But, the principle laid down in the above judgments based on the rules regarding the same issue is squarely applicable to this case.
14.As far as the rule 24(f) is concerned, the same was introduced by G.O.Ms.No.1710, Home Department dated 23.11.2007. The appellants herein were promoted as Inspectors even in the year 2006. Thus, the appellants were promoted as Inspectors much earlier to the date of above amendment. It is well settled that the amended rule will have only prospective effect. Therefore, the above rule will in no way affect the rights of the appellants. It is also pertinent to note that the writ petitioners have not challenged the promotion given to the appellants. The writ petition has been filed in 2013. As per rule 35(f) of Tamil Nadu state and Subordinate Service Rules, any application in the revision of seniority of a person in a service, class or category or grade received after the period of three years shall be summarily rejected. Therefore, as rightly contended by the learned senior counsel for the appellants, the writ petitioners cannot now question the promotion of the seniority gained by the appellants.
15.The learned senior counsel for the appellants also contended that the writ petitioners do not even have the requisite qualification for promotion to the next higher post, as per rule 4(c) of the Special Rules for Tamil Nadu Police Service as amended in G.O.Ms.No.734 dated 08.11.2011. For appointment as Assistant Commandant, Inspector Adjutant or Inspector of Tamil Nadu Special Police Service, should have completed five years of service in the respective category officiating or permanent. The writ petitioners, admittedly, have no such requisite qualification. Therefore, the contention of the learned senior counsel for the appellants cannot be brushed aside.
16.The learned senior counsel for the respondents cited the decision of the Hon'ble Supreme Court in Bhupendra Nath Hazarika V. State of Assam reported in (2013) 2 SCC 516, for the proposition that whenever, there has to be relaxation about the operation of any of the rules, regard has to be given to the test of causation of undue hardship in any particular case and it should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. He also cited another Hon'ble Suprement Court judgment in Major General R.S.Balyan V. Secretary, Ministry of Defence reported in (2007) 1 Supreme Court Cases 513 for the proposition that Union of India is competent to correct the mistake of ranking the appellant senior to respondent-5 in the substantive rank of Brigadier when such mistakes or irregularity has come to its knowledge through representation. In this case on hand, no doubt, on representation given by the personnel in general line, Rule 24(f) was inserted by way of amendment. But, the rule will have effect only from the date of its issuance. The respondents cannot claim benefits taking advantage of the above said rulings contrary to the rules and settled principles of law. Therefore, the above rulings are not applicable to the facts of this case.
17.The learned counsel for the respondents 10 and 11 have brought to notice of this Court to the decisions of the Hon'ble Supreme Court in Pawan Pratap Singh Vs. Reevan Singh reported in (2011) 3 SCC 267 and another decision in S.Panneer Selvam Vs. State of Tamil Nadu reported in (2015) 10 SCC 292, with respect to inter-se seniority and catch up rule. The above rulings related to seniority in a particular category or class and the same are not application to the facts of this case.
18.The learned senior counsel for the appellants cited the Hon'ble Supreme Court judgment in B.S.Bajwa and another Vs. State of Punjab and others and contended that the settled seniority need not be disturbed for after about a decade. In the above judgment, the Hon'ble Supreme Court has held as follows:
It is well settled that in service matters the question of seniority should not be re- opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition. In the present case on hand, promotion was given to the appellants in 2006. Therefore, the seniority in the promotional post has been settled as far as the appellants are concerned. Following the above judgment of the Hon'ble Supreme Court, the seniority already settled cannot be unsettled after a long gap.
19.For the aforesaid reasons, this Court is of the view that the learned Single Judge is not correct in allowing the writ petition, granting the relief as prayed for.
20.Accordingly, the writ appeals are allowed and the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes/No (A.S.,J.) (P.K.,J.)
Internet : Yes/No 14.12.2016
Arul
To
1.The Secretary to Government,
State of Tamil Nadu,
Home Department,
Secretariat, Chennai 9.
2.The Director General of Police,
Tamil Nadu,
Chennai 4.
3.The Additional Director General of Police,
Armed Police,
Chennai 10.
A.SELVAM,J.
And
P.KALAIYARASAN, J
Arul
Pre-Delivery Judgment made in
Writ Appeal (MD) Nos.261 and 1525 of 2016
and
C.M.P.(MD) Nos.7137, 4375 and 18972 of 2016
14.12.2016
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