Madras High Court
S.Saravanan vs State Of Tamil Nadu on 11 September, 2012
Author: P. Jyothimani
Bench: P. Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 11.9.2012 CORAM THE HONOURABLE MR.JUSTICE P. JYOTHIMANI Writ Petition Nos.21039 of 2010, 22324 of 2010 and 11563 of 2011 and M.P.Nos.1 and 2 of 2010 and M.P.Nos.1/2010 and 1/2011 W.P.No.21039 of 2010 1. S.Saravanan 2. P.Balasubramanian 3. V.Pandian 4. K.Chandra Sekaran 5. R.Rangarajan 6. R.Ambikapathy 7.V.Selvamoorthy 8.V.Sugumaran 9.K.Rajaram 10.M.Kader Meera Sahib 11.P.Madasamy 12.G.Manoharan 13.R.Issac Paulraj Boopathy 14.P.Jayaraj 15.K.Krishnamoorthy 16.R.Chandran 17.K.Narayanamoorthy 18.A.Bhakthavachalam 19.K.Periasamy 20.S.Elambaruthi 21.K.Jegannathan 22.K.Kamaraj 23.K.M.Natarajan 24.D.Shanmugam 25.K.Sunderraj 26.K.Kumarasamy 27.J.Duraisamy 28.T.Mariappan 29.P.Ramalingam 30.N.Nachimuthui 31.P.Muthuraj 32.R.Subramanian 33.S.Navaneethakrishnan 34.P.Gunasekaran 35.P.Nagarajan 36.K.Nachiappan 37.A.Periasamy 38.R.Chelladurai 39.N.Sampathkumar 40.G.Balraj 41.R.Selvaraj 42.C.Sambasivam ... Petitioners -Vs- 1.State of Tamil Nadu, rep. by its Secretary to Govt. Home Department, Fort St.George, Chennai-9. 2.The Director General of Police, Kamarajar Salai, Mylapore, Chennai-4. 3.V.R.Soundarrajan Asst. Commissioner of Police, Intelligence Section, Salem City. 4.P.Balachandran Asst. Commissioner of Police, M.K.B. Range, Chennai City. 5.S.M.Mohammed Iqbal, Deputy Superintendent of Police, Vigilance and Anti Corruption, Chennai. 6.K.Chandra Sekaran Asst. Commissioner of Police, Traffic Investigation (North), Villivakkam, Chennai City. 7.D.Jude, F.A.S.Duraipandian, Asst. Commissioner, Poonamallee. 8.S.Selva Arasu 9.G.Sankara Pandian 10.K.Rajakumar 11.K.Sethuraman 12.S.Rajendiran 13.M.X.B.Stanley 14.K.Rajendiran 15.M.Murugesan 16.E.M.Swaminathan 17.S.Maran 18.S.Eswaran 19.P.Muthamizhan 20.N.Dhanapal 21.K.S.Subramaniyan 22.M.Sundara Rajan 23.R.Raveendiran 24.M.Alas Ali 25.K.N.Murali 26.K.Natarajamoorthy 27.C.Sivasamy 28.M.Jagabar Sali 29.R.Hari 30.G.S.Sivanantham 31.R.Valsarajan Deputy Superintendent of Police V& AC, City Special Unit III, Nandanam, Chennai-35. (R8 to R30 impleaded as per order dt.26.10.2010 by RSJ in M.P.No.3/2010 inWP.No.21039/2010) (R31 impleaded as per order dt.11.9.2012 by PJMJ in M.P.No.1/2011 in WP.No.21039/2010) ... Respondents W.P.No.22324/2010 L.M.Chandrasekar Deputy Superintendent of Police, EOW II, Head Quarters, Anna Nagar, Chennai-600 040. ... Petitioner -Vs- 1.State of Tamil Nadu, rep. by its Secretary to Govt., Home Department, Fort St.George, Chennai-9. 2. The Director General of Police, Mylapore, Chennai-4. 3. V.R.Soundarrajan Assistant Commissioner of Police/I.S. Salem City. 4. P.Balachandran Assistant Commissioner of Police, M.K.B. Range, Chennai City. 5. S.M.Mohammed Iqbal Deputy Superintendent of Police, Vigilance and Anti Corruption, Chennai. 6. K.Chandra Sekaran Assistant Commissioner of Police, Traffic Investigation (North) Villivakkam, Chennai City. 7.D.Judi, F.A.S.Duraipandian, Assistant Commissioner, Poonamallee Range, Chennai Suburban, Poonamallee. . ... Respondents W.P.No.11563/2011 S.Krishnan ... Petitioner -Vs- 1. State of Tamil Nadu rep. by its Secretary to Govt., Home Department, Fort St.George, Chennai-9. 2. The Director General of Police, Kamarajar Salai, Mylapore, Chennai-4. ... Respondents Prayer in W.P.No.21039 of 2010: Writ Petition has been filed praying for issuance of a Writ of Mandamus directing the 1st and 2nd respondents to restore the seniority on the basis of ranking given by the Police Training College in respect of petitioners who are all directly recruited Sub-Inspector of Police in 1979 batch in view of the judgment of the Division Bench of this Hon'ble Court in W.P.Nos.38792 & 38793/2003 dated 10.9.2007. Prayer in W.P.No.22324 of 2010: Writ Petition has been filed praying for issuance of a Writ of Mandamus directing the 1st and 2nd respondents to restore the seniority on the basis of ranking given by the Police Training College in respect of petitioner who is directly recruited Sub-Inspector of Police of 1979 batch in view of the judgment of the Division Bench of this Hon'ble Court in W.P.Nos.38792 & 38793/2003 dated 10.9.2007. Prayer in W.P.No.11563 of 2011: Writ Petition has been filed praying for issuance of a Writ of Mandamus directing the 1st and 2nd respondents to restore the seniority on the basis of ranks given by the Police Training College in respect of petitioner who is directly recruited Sub-Inspector of Police of 1979 batch in pursuance of the judgment of the Division Bench of this Hon'ble Court in W.P.Nos.38792 & 38793/2003 dated 10.9.2007. For Petitioners : Mr.N.Vijayanarayan Senior Counsel for M/s.K.Muthuramalingam For Respondents : Mr.M.K.S.Sundar for M/s.Yes Vee Associates for R25 Mr.Suchindran for R5 Mr.N.Sundaramoorthy for R31 Mr.V.Jayaprakash Narayanan A.G.P for R1 & R2. COMMON ORDER
All the writ petitioners in these petitions belong to 1979 recruited batch of Sub Inspectors of Police and their claim is that they should be conferred seniority on the basis of ranking given to them by Police Training College. Their contention is that such issue was raised before this Court by two of the candidates who were selected as Sub-Inspectors of Police by direct recruitment in the year 1976 and afterwards underwent training in the Police Training College and thereafter were appointed as Sub-Inspectors of Police in Tamil Nadu Police Subordinate Service.
2. A Division Bench of this Court in W.P.Nos.38792 and 38793 of 2003 in the Order dated 10.9.2007 has held that the Special Rules of Tamil Nadu Police Subordinate Service as amended by G.O.Ms.No.767 Home (Pol.III) dated 28.3.1985, by which, a proviso was included, which stood as follows:
Provided further that in respect of direct recruitment made in the year 1976 and 1979 to the posts of Sub-Inspectors of Police and the Reserve Sub-Inspectors of Police by the Tamil Nadu Public Service Commission, the seniority shall be fixed with reference to the Rank assigned by the Tamil Nadu Public Service Commission in the list of selected candidates communicated by it. as ultra vires.
3. A reading of the said amendment which was brought in the State Service Rules in the year 1985 shows that in respect of the persons recruited on direct recruitment as Sub-Inspectors of Police in the year 1976-1979, the seniority has to be fixed with reference to the rank assigned by the Tamil Nadu Public Service Commission in the list of selected candidates.
4. The Division Bench has come to a conclusion in setting aside the said amended rule as erroneous on the basis of that rule, which came to be amended by the Government Order dated 28.3.1985 can be operative only prospectively since insertion of the proviso to Rule 25 cannot be made with a retrospective effect, as by making retrospective effect to the said amendment, the seniority already fixed and conferred to various persons will be unsettled. It was based on the said ground, the Division Bench has set aside the amendment carried out in the said Special Rules for Tamil Nadu Police Subordinate Service, thus holding that seniority fixed as per the Police Training College list shall be followed for the candidates appointed in the year 1996. It is as against the said Order of the Division Bench, a Special Leave Petition has been filed before the Supreme Court and the Honourable Supreme Court while dismissing the petition filed by the Government for stay of the said order, has directed issuance of notice in the Special Leave to Appeal Petition, which is still pending.
5. In the mean time, taking note of the fact that the Supreme Court has dismissed the stay petition filed by the Government, against the Order of the Division Bench, the petitioners have filed the above petitions for a direction against the Government to follow the seniority list of Police Training College in respect of Sub-Inspectors of Police appointed in the year 1979. This stand was opposed by the original respondent and other respondents who were subsequently impleaded and who were appointed through the list prepared by TNPSC in the year 1979, on the ground that by virtue of dismissal of the stay petition by the Supreme Court against the Order of the Division Bench, the seniority list prepared by the TNPSC has to be followed for the purpose of giving promotion in respect of Sub-Inspectors of Police appointed in the years 1976-1979.
6. It is also the case of the respondents that in respect of the persons appointed in the year 1976, the Government has issued various orders by implementing amended rule giving promotion to the persons as per the seniority list prepared by the TNPSC. According to them, when similarly situated persons who were appointed in the year 1976 were given benefit, the denial of the same to 1979 batch by the Government is arbitrary. Therefore, their contention is that mere filing of Special Leave Petition before the Supreme Court shall not take away the rights of the respondents for giving promotion and preparing seniority list among them based on the seniority list prepared by TNPSC. It is also their case as contended by the learned counsel appearing for the 5th respondent that Police Training College is not the Authority to prepare the seniority list since the seniority list has to be prepared by Constitutional Authority viz., TNPSC on the basis of examination conducted and marks obtained. Therefore the marks assigned by the Police Training College cannot be taken note of for the purpose of preparing seniority list of the Sub-Inspectors of Police.
7. It is also brought to the notice of this Court that the Honourable Apex Court in the decision in KUNHAYAMMED Vs. STATE OF KERALA (2000) 6 SCC 359) while laying down the various principles regarding jurisdiction of the Supreme Court with regard to Article 136 of the Constitution of India has held that mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be appealed to the Supreme Court and once a special leave has been granted, the order impugned before the Supreme Court becomes an order appealed against and no court can take up any application etc in respect of the issue pending before the Supreme Court.
8. On the other hand, Mr.N.Vijayanarayan, learned Senior Counsel appearing for the petitioners would submit that a reading of the above decision would make it clear that jeopardy theory propounded by the Supreme Court in various decisions regarding Article 136 of the Constitution of India will come into operation only if the person by way of appeal is allowed to enter into the Apex Court which is possible only when the Special Leave is granted and it is not correct that mere issuing notice in SLP, the Supreme Court has satisfied with the merits of the case. Till the case is pending before the Supreme Court after it grants the leave to appeal it cannot be said that the judgment of the Division Bench can be either treated as inoperative or per incuriam.
9. The decisions of the Supreme Court relied on by the learned counsel for the fifth respondent with regard to principles of per incuriam, in my considered view, cannot be made applicable to the facts of the present case, especially when against the Order of the Division Bench Special Leave Petition has been filed and notice has been ordered. Further, there is no substance in the contention of the learned counsel for the 5th respondent that there has been long latches. On the factual matrix, it is clear that the cause of action for the writ petition has arisen only after the Division Bench has set aside the Police Service Subordinate Rules as amended, and that judgment was given effect to in the year 2005 and therefore there is no question of latches which would come into operation on the facts and circumstances of the case.
10. It is also brought to the notice of this Court by the learned Senior Counsel for the petitioners as well as the learned counsel for the respondents that in respect of certain cases where the learned single Judges have issued orders directing the Government to pass appropriate orders of promotion on seniority based on the judgment of the Division Bench, the Government has issued orders in the individual case based on the list prepared by Police Training College. On the other hand, there are orders issued by the Government in respect of similarly situated appointees as Sub-Inspectors of Police wherein the Government has followed the amended rule and the seniority assigned by the TNPSC has been followed by the State Government by giving promotion to various candidates. In both the distinctive and different types of orders, the Government has made it clear that such promotions are subject to the final result of the SLP. It is true that as against such orders by the Government nobody has approached this Court challenging that it is in violation of the order of the Division Bench.
11. In the decision of the Supreme Court in KUNHAYAMMED Vs. STATE OF KERALA (2000) 6 SCC 359) while settling the jurisdiction of the Supreme Court under Article 136 of the Constitution of India and the effect of issuing of notice with regard to grant of special leave and disposal of civil appeal in various stages and the legal position, it has been explained as follows:
(1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;
(2) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;
(3) If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in the appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.
(4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.
12. A reading of the said judgment makes it clear, especially, in the fourth guideline that once special leave to appeal petition is filed, till the leave to appeal is granted, the original judgment or decree against which the special leave to appeal is filed, will continue. After the leave to appeal is granted, the impugned judgment is put in jeopardy even though it may continuously bind upon the respective parties concerned.
13. Now it is informed to this Court that the Supreme Court has issued notice in Special Leave Petition which is pending. Taking into account the fact that different and distinctive orders passed by the Government on various circumstances based on direction given by this Court or otherwise, I am of the view that it must be left open to the Government to decide the issue relating to seniority not only with regard to the petitioners but also to the respondents in accordance with law. This order is passed on the basis that it is brought to the notice of this Court that enormous number of vacancies in the promotion posts are available and due to the order of status quo granted by this Court the Government is unable to fill up the posts.
14. Therefore, I am of the view that in the interest of justice and taking into account the interest of the petitioners and respondents, the Government should decide the issue of seniority in accordance with law. It is also brought to the notice of this Court that while promotion was given to 1976 batch, no promotion was made so far.
15. Accordingly, the writ petitions stand disposed of with a direction to the Government to pass orders with regard to seniority of the petitioners as well as the respondents in accordance with law and such orders shall be passed within a period of eight weeks from the date of receipt of a copy of this Order. The order of status quo granted by this Court stands vacated. No costs. Connected miscellaneous petitions are closed.
vks Copy to:-
The Secretary to the Government of Tamil Nadu, Home Department, Fort St.George, Chennai-9.
2. The Director General of Police, Kamarajar Salai, Mylapore, Chennai 4