Madras High Court
M.P. Saraswathy vs R. Paranthaman on 8 November, 2023
Bench: R. Mahadevan, Mohammed Shaffiq
W.A No. 732 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2023
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal No. 732 of 2022
and
CMP. No. 5113 of 2022
---
1. M.P. Saraswathy
2. D. Kumarasamy Durai
3. R. Kumar
4. G. Ravinathan
5. S. Aaraamudhan
6. M. Chitra
7. V. Vijayalakshmi
8. S. Selvaraj
9. R. Rajalakshmi
10.T. Thambirajan
11.G. Sarala
12.S. Gomathy
13.C. Sureshkumar
14.J. Jayarani
15.S. Umamaheswari
16.R. Banu
17.C. Subbulakshmi
18.T. Petchimuthu
19.V. Rajavelu
20.N. Sumathi
21.K. Kavitha
22.V. Merciliza
23.V. Rajesh
24.R. Vijayabaskar
25.A. Srinivasan
https://www.mhc.tn.gov.in/judis
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W.A No. 732 of 2022
26.K. Sujatha
27.K. Mohankumar
28.K. Kalaiselvi
29.M. Udhayakumar
30.E. Selvam
31.A. Muthukumar
32.S. Ganesan
33.R.K. Baskar
34.V. Rameshgandhi
35.V. Seenivasan
36.V. Sudhadevi
37.S. Manivel
38.J. Saraswathi
39.N. Mariyammal
40.S. Hakkim
41.D. Balanaga Jothi
42.A. Vijayakumar
43.A. Marakkar
44.S. Krishnakumari
45.K. Saravanan
46.S. Selva Suresh Britto
47.R. Joie
48.T. Poonkunran
49.K. Sreedevan
50.P. Kavitha
51.K. Kuppusamy
52.V. Nishanth
53.S. Venkatesan .. Appellants
Versus
1. R. Paranthaman
2. S. Vijaya
3. B. Leo Janci Rani
4. R. Revathi
5. P. Lakshmi
6. R. Rajeswari
7. R. Sudha
8. B. Ruby
9. N. Mahalakshmi
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W.A No. 732 of 2022
10.Pasamalar
11.S. Malarkodi
12.R. Muthurakku
13.P. Vasanthi
14.J. Saraswathi
15.A. Kavitha
16.G. Suganthi Malarkodi
17.CS. Kalaimathi
18.R. Vijaya
19.M. Mohan Das
20.I. Suba
21.C. Sangeetha
22.M. John Jeyasingh
23.I. Suresh Wilson
24.N. Natchathiram
25.P. Maheswari
26.M. Asia
27.S. Subbu Lakshmi
28.Anbazhagan
29.M. Maheswari
30.S. Chitra
31.A. Ilangovan
32.I. Maheswari
33.R. Gandhi Manickam
34.K. Kavitha
35.S.V. Arun
36.K. Murugan
37.Malarvizhi
38.S. Vinod Samuvel
39.M. Manoharan
40.S. Ramesh
41.M. Poonkodi
42.T. Tamilarasi
43.A. Jayaseetha
44.M. Lakshmi
45.R. Munivel
46.S. Subramaniyan
47.M.R. Vijaya Rajeswari
48.T. Ganapathy
49.A. Selva Rani
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W.A No. 732 of 2022
50.M. Lavanya
51.State of Tamil Nadu
rep. by its Secretary to Government
Home (Police-III) Department
Secretariat, Chennai - 9
52. Director General of Police
Dr. Radhakrishnan Salai
Chennai - 4
53. Additional Director General of Police
Armed Police, Lutens Garden
Kilpauk, Chennai - 10
54. M. Jagan
55. A. Karthi Ganesh
(R54 and R55 are impleaded as per the order
of this court dated 29.08.2023 in
CMP.No.9488 of 2023 in WA No.732 of 2022) .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the Order
dated 24.08.2021 passed in Writ Petition No. 14410 of 2020 on the file of this
Court.
For Appellants : Mr. P. Wilson, Senior Advocate
Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan
For Respondents : Mr. R. Viduthalai, Senior Advocate
for Mr. K. Ravi Anantha Padmanabhan
for RR1 to 50
Mr. P. Kumaresan, Additional Advocate General
assisted by Mrs. Mythreye Chandru
Special Government Pleader for RR 51 to 53
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Mr. R. Singaravelan, Senior Advocate
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W.A No. 732 of 2022
for Mr. Jayaprakash for R54 & R55
JUDGMENT
(Judgment of the Court was delivered by R.MAHADEVAN, J) The challenge made in this writ appeal is to the order dated 24.08.2021 passed by the learned Judge in Writ Petition No. 14410 of 2020 filed by the respondents 1 to 50 herein.
2. The appellants, who were not parties to the writ proceedings, have preferred this writ appeal, after obtaining leave from this court. WRIT PROCEEDINGS
3. (i) The respondents 1 to 50 herein, as writ petitioners, filed the aforesaid writ petition bearing No.14410 of 2020 praying to issue a Writ of Mandamus directing the respondent authorities to grant them retrospective promotion to the post of Sub-Inspectors of Police on par with their batchmates who were promoted as Sub-Inspectors of Police with effect from 03.07.2008 vide R.C. No.A1/13545/2008, R.O. No. 325/2008 and approved on 11.12.2009 vide R.C. No.A1/14925/2009, R.O. No. 430/2009, with all consequential benefits besides fixing inter-se seniority based on low marks secured by them at Police Recruit School in the post of Sub-Inspectors of Police, within a time https://www.mhc.tn.gov.in/judis 5/63 W.A No. 732 of 2022 frame.
(ii) In the affidavit filed in support of the Writ Petition, the respondents 1 to 50 herein would state that during the year 1995-1996, about 10000 Grade-II Police Constables were recruited in Tamil Nadu Special Police (in short 'TSP'), in which, the respondents 1 to 50 also got selected on merits and on the basis of same notification/advertisement. Subsequently, they were sent for training. Since enough infrastructure facilities were not available to impart training to all the 10000 recruitees, for administrative convenience, initially, 5000 constables were sent for training on 16.04.1997 followed by the second batch of 5000 constables for training on 31.10.1997, including the respondents 1 to 50 herein. After training, the respondents 1 to 50 were given appointment to work in TSP. While so, over a period of time, several batch mates of the respondents 1 to 50 got migrated to Armed Reserve (AR)/ Category II or to Law and Order/Category I as and when vacancies arose. During the year 2012-2013, when combined seniority list of Havildars (equal to Head Constables) fit for promotion to the post of Sub-Inspectors of Police (General) was published, the respondents 1 to 50 were included in the seniority list along with those, who were recruited with them and who were sent for training in the first batch. Therefore, the respondents 1 to 50 legitimately and reasonably anticipated that the same seniority will be adhered https://www.mhc.tn.gov.in/judis 6/63 W.A No. 732 of 2022 to for further promotion. While so, by proceedings dated 31.08.2018, those who were sent to training in the second batch were shown in the "C" list of Sub-Inspectors and by further order dated 25.09.2018, the third respondent in the writ petition released the list of temporarily promoted Sub-Inspectors of Police, thereby promoting the respondents 1 to 50 herein, in TSP and on 24.09.2019, the promotion given to them was ordered to be regularised.
(iii) The grievance of the respondents 1 to 50 herein / writ petitioners therein, was that there are 150 Sub-Inspectors of Police, including them, in TSP. If the inter se seniority list is followed properly, those who have secured higher marks will get proper seniority. Whereas, the present list of seniority of Sub-Inspectors in TSP would reveal that the official respondents placed those who secured less marks, above the respondents 1 to 50 / writ petitioners. Further, those who have appeared in the selection process through Sports Quota, did not even write the written examination, but they were sent to training in the first batch and placed above the respondents 1 to 50/writ petitioners in the seniority list. According to the respondents 1 to 50 herein, there should not be any distinction or discrimination in the fixation of seniority based on the batch in which the candidates were sent for training. The selected candidates were sent for training in two batches only due to administrative convenience and lack of facilities to accommodate all. Therefore, the inter-se https://www.mhc.tn.gov.in/judis 7/63 W.A No. 732 of 2022 seniority should be fixed only in accordance with the marks secured by the candidates at the Police Recruitment School (PRS). In this context, reference was made to the decision of the Honourable Supreme Court in A. Raghu v. Government of Andhra Pradesh and others [(2015) 14 SCC 221]. The respondents 1 to 50/writ petitioners also stated that the Division Bench of this Court, in an identical case, while interpreting Rule 25 (a) of Tamil Nadu Police Subordinate Service (TNPSS) Rules, held that for the purpose of fixation of seniority, the relevant date must be the date on which he was selected and the inter se seniority shall be based on the marks secured by the candidates of the same batch. On the basis of the said decisions, the official respondents followed and fixed the inter-se seniority based on the marks secured in the PSR for the subsequent batch of selectees appointed in the year 2006 and those, who were sent for training on 18.01.2008.
(iv) It was further stated that their batch mates, who were sent for training in the first batch were promoted to the post of Sub-Inspectors of Police even during the year 2008, but the respondents 1 to 50 / writ petitioners were given such promotion later. The respondents 1 to 50/writ petitioners therefore submitted a representation dated 24.09.2010 seeking seniority, to which, a reply dated 19.11.2020 was received, rejecting the contentions raised by the respondents 1 to 50. Thereafter, on 25.10.2010, yet another https://www.mhc.tn.gov.in/judis 8/63 W.A No. 732 of 2022 representation was sent to the official respondents, but there was no reply. In such circumstances, the respondents 1 to 50 / writ petitioners filed the aforesaid Writ Petition.
4.(i) The 53rd respondent herein / 3rd respondent in the writ petition filed a detailed counter affidavit, wherein, it was inter alia stated that based on the existing Service Rules, the seniority of Grade-II Police Constables, Naiks and Havildars are being maintained in Battalion level, while those in the cadre of Sub-Inspectors of Police is being maintained State-wise. While fixing the inter-se seniority of Havildars (General) fit for promotion as Sub-Inspectors of Police (General) the date of promotion as Havildar (General), Naik (General), date of enlistment as Grade-II Police Constables and the marks obtained in Police Recruit School are taken into consideration. Accordingly, the respondents 1 to 50/writ petitioners, who were enlisted on 31.10.1997 AN are placed below the persons who were enlisted on 16.04.1997 since they are seniors not only based on the date of enlistment, but as per the marks secured in the final examination. The respondents 1 to 50/writ petitioners are appointed as Grade-II Police Constables and therefore, their seniority is being maintained in the District level/battalion level. While so, they cannot compare the higher post of Sub-Inspector of Police when they are not directly recruited https://www.mhc.tn.gov.in/judis 9/63 W.A No. 732 of 2022 to such post. Instead, the respondents 1 to 50 herein / writ petitioners were recruited as Grade-II Police Constables and got promotion as Sub-Inspector of Police by promotion under rank promote quota.
(ii) The counter affidavit further proceeds to state that the persons who were sent for training on 16.04.1997 have obtained higher marks and the respondents 1 to 50/writ petitioners were sent for training on 31.10.1997 have secured lower marks. The allegation that those who have secured lower marks were sent to training in the first batch is not correct. The respondents 1 to 50/writ petitioners were sent for the training in the second batch based on the marks secured by them. Therefore, their contention for fixation of seniority is baseless. As per the existing Rules, the seniority of Grade-II Police Constables has to be fixed based on the marks obtained by them in the PSR as per Rule 24(d) of the TNPSS Rules. While so, if the prayer sought for by the respondents 1 to 50/writ petitioners is considered, it would cause administrative hindrance to all 10000 persons and the existing Rules will have to be violated. In the combined Seniority list of Havildar (General) fit for promotion as Sub-Inspectors of Police (TSP), the inter-se seniority has been fixed based on the date of promotion of Havildar, date of enlistment and then marks. Hence, there is no violation in the fixation of inter-se seniority, as alleged by the respondents 1 to 50/writ petitioners and prayed for dismissal of https://www.mhc.tn.gov.in/judis 10/63 W.A No. 732 of 2022 the writ petition.
ORDER OF THE LEARNED JUDGE
5. The learned Judge, on considering the rival submissions of the counsel for both sides, concluded that there is no dispute that the respondents 1 to 50/writ petitioners have secured higher marks than some of those who were sent for training in the first batch on 16.04.1997. Therefore, the marks secured at the time of initial selection pursuant to the competitive examination is of no relevance. Instead, the marks secured in the Police Recruitment School will be the determining factor for fixation of inter-se seniority. Thus, it was concluded by the learned Judge that the official respondents have failed to maintain inter-se seniority among the respondents 1 to 50/writ petitioners as per Rule 24 (d) of the TNPSS Rules, which is applicable to them. Accordingly, while allowing the writ petition filed by the respondents 1 to 50/writ petitioners, a direction was issued to the official respondents to fix the inter-se seniority of the respondents 1 to 50/writ petitioners with consequential benefits to the persons, who scored higher marks in the PRS than the persons who were earlier promoted, based on the marks obtained by them at the initial selection. At the same time, the official respondents were also directed to notionally promote the respondents 1 to 50/writ petitioners from the date on https://www.mhc.tn.gov.in/judis 11/63 W.A No. 732 of 2022 which their batch mates were promoted as Sub-Inspectors of Police in the year 2008. Aggrieved by the said order dated 24.08.2021 passed by the learned Judge, the present writ appeal came to be filed.
CONTENTIONS OF THE PARTIES
6. (i) Mr. P. Wilson, learned Senior counsel appearing for the appellants, at the outset, would contend that in a matter of this nature, the respondents 1 to 50/writ petitioners ought to have impleaded the appellants herein as parties to the writ proceedings, as they are the proper and necessary parties for adjudication. However, without impleading the appellants, the respondents 1 to 50/writ petitioners have filed the writ petition. While so, the learned Judge ought not to have entertained the writ petition and the writ petition ought to have been dismissed in limine for non-joinder of the appellants. This is more so that all the police personnel recruited in the batch of the year 1995-1996 have been conferred with promotion to further posts. In such circumstances, the writ petition filed for alteration of the seniority based on the marks obtained in the PRS or on any other ground is not legally sustainable and it is hit by the principles of delay and laches. In this regard, reliance has been placed on the decision of the Honourable Supreme Court in State of Uttaranchal and another v. Madan Mohan Joshni and others https://www.mhc.tn.gov.in/judis 12/63 W.A No. 732 of 2022 [(2008) 6 SCC 797] wherein it was held thus:
"16. The High Court, in its impugned judgment, proceeded on the basis as to what would constitute a substantive appointment. The decisions of this Court, whereupon strong reliance has been placed by the High Court in arriving at its conclusion may not be of much significance, but what is significant is that int he writ petition even Savita (Mohan) Dhondyal and others who lose their seniority in the event writ petition was to be allowed, were not impleaded as parties. They, in our opinion, should have been impleaded as parties in the writ application. Savita (Mohan) Dhondyal and others, if the writ petition is allowed, would suffer civil consequences. Inter se seniority may not be a fundamental right, but is a civil right (See State of U.P. v. Dinkar Sinha (2007) 10 SCC 548). The respective rights of seniority of the parties, thus, required determination in their presence.
17. A three-Judge Bench of this Court in Prabodh Verma vs. State of U.P. (1984) 4 SCC 251 stated the law as under: (SCC pp.273-74, para-28) "28. A High Court ought not to decide a writ petition under Article 226 of The Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's Writ Petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of parties."
18. Reliance placed on A. Janardhana vs. Union of India (1983) 3 SCC 601 by Mr. Garg, in our opinion, is misplaced. Therein, no relief was claimed against any individual. The only relief which was claimed therein was against the Union of India. The question which was raised therein was a question of interpretation. It was in the aforementioned situation, this Court held that all the employees were not required to be impleaded as a party. In that case, the case of direct recruits has not gone unrepresented. It was stated:
(SCC pp.625-26, para 36) "36.......In this case, the appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus, the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents."
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(ii) The learned Senior counsel for the appellants further submitted that the selection to the post of Grade-II Police Constable was conducted during the year 1995-1996 in which about 10000 police personnel were enlisted on range-wise selection, as notified. The selected candidates were sent for training in two phases following range-wise selection seniority and on completion of training, their services were regularised from the date of appointment and probation was also declared on that basis. Accordingly, the respondents 1 to 50/writ petitioners were appointed on 31.10.1997 and sent for basic training at PRS on 01.11.1997 in the second batch and their seniority was arrived at accordingly. In other words, in respect of the two batches, the seniority was fixed based on the marks secured in law papers in the final examination conducted at PRS among the respective batch as per Rule 24 (d) of the TNPSS Rules. Thus, the apportionment of batch, based on selection seniority, is different from conferment of seniority under Rule 24(d), particularly when the appointment was made based on range-wise selection. The enlistment seniority arrived at and finalised during 1997 was acted upon and all the selectees were given promotion to the post of Naik, Havildar and Sub-Inspector of Police, based on such settled seniority. The appellants herein were given promotion to the post of Sub-Inspector of Police during 2008 and it https://www.mhc.tn.gov.in/judis 14/63 W.A No. 732 of 2022 was also approved by the competent authority in the year 2009. Whereas, the respondents 1 to 50/writ petitioners were given the post of Sub-Inspectors of Police only during the year 2018 based on the vacancy. However, much belatedly, they have filed the present writ petition claiming revision of seniority in the post of Sub-Inspector of Police after 24 years. Such a claim made by the respondents 1 to 50/writ petitioners is certainly barred and it would result in unsettling the settled seniority position among the appellants and respondents 1 to 50. This was not properly appreciated by the learned Judge, while allowing the writ petition filed by the respondents 1 to 50 herein.
(iii) The learned Senior counsel for the appellants, placing reliance on Rule 35 (f) of the Tamil Nadu State and Subordinate Service Rules as well as Section 40(6) of the Tamil Nadu Government Servant (Conditions of Services) Act, 2016, submitted that an application seeking revision of seniority of a person in any particular class, category or grade shall be submitted to the appointing authority within a period of three years from the date of their appointment and any application received after such period shall be summarily rejected. While so, the present claim made by the respondents 1 to 50 / writ petitioners to refix and/or revise their seniority after 24 years from the date of their appointment is clearly barred and the learned Judge ought not to have entertained the same. Therefore, to reiterate that an application for revision of https://www.mhc.tn.gov.in/judis 15/63 W.A No. 732 of 2022 seniority has to be made within a reasonable time or within the time fixed under the statutory enactments, the learned Senior counsel referred to the following decisions:
(a) P.S. Jegannathan v. State, 2015 SCC Online Madras 6173, [Division Bench of this Court]:
"31. The next issue to be considered is whether the applications for revision of seniority was made within the time prescribed under the statutory rule? Rule 35 (f) of the General Rules states that application for revision of seniority shall be submitted to the appointing authority within a period of three years years from the date of appointment to such service or within a period of three years from the date of fixing the seniority. The rule further states that any application received after the said period of three years shall be summarily rejected. The rule carves out an exception stating that this time limit will be made applicable to cases rectifying orders resulting from mistake or facts.
32. It has to be seen as to whether the challenge to the seniority list as published by the Tamil Nadu Public Service Commission was within the time stipulated. Admittedly, there was no objection raised after the ranking list was notified by the Tamil Nadu Public Service Commission in their bulletin. Even after the proceedings dated 07.09.1985, when the Chief Engineer notified the inter se seniority position as per ranking assigned by TNPSC, there was no attempt to challenge the same or object to the same within a period of three years. In fact, there was no challenge to the embargo placed in the proceedings dated 07.09.1985 stating that revision of seniority as fixed by the Tamil Nadu Public Service Commission cannot be altered.
33. For the first time, one petitioner (Mr. R. Raja) had filed two original applications before the Tribunal first of which was in 1997 and the second in 2000. In both these original applications, Mr. R. Raja did not challenge the proceedings dated 07.09.1985. Furthermore, in the said original application, persons over and above whom Mr. R. Raja wanted his seniority to be re-fixed were not made parties. The original applications were disposed of in 2002. In the preceding paragraphs, we have rejected the case of the petitioners that the cause of action to question the inter se seniority arose only much later. We reiterate the stand taken earlier on this issue. Thus, the representation now sought to be made by the petitioners for re-fixing the inter se seniority is clearly barred in terms of Rule 35 (f). The case of the petitioners does not fall within the exception carved out in the rule as it is not a case of rectifying an order resulting from a mistake of fact. Having done so, the petitioners are estopped from now raising a plea that their seniority should be fixed from the date of regularisation. Admittedly, the temporary appointment was not in accordance with the Rules and what is important is the https://www.mhc.tn.gov.in/judis 16/63 W.A No. 732 of 2022 date of actual appointment in accordance with the procedure and in accordance with the Rules."
(b)H.S. Vankani and others v. State of Gujarat and others, (2010) 4 Supreme Court Cases 301, (SC):
"38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times, calls for departmental action. Legal principles have been reiterated by this Court in Union of India vs. S.K. Goel (2007) 14 SCC 641; T.R. Kapoor vs. State of Haryana (1989) 4 SCC 71 and Bimlesh Tanwar vs. STate of Haryana (2003) 5 SCC 604. In view of the settled decisions cited by the appellants in G.P. Doval case (1984) 4 SCC 329, Prabhakar vs. State of Maharashtra (1976) 2 SCC 890, G. Deenadayalan Ambedkar vs. Union of India (1997) 2 SCC 638 and R.S. Ajara vs. State of Gujarat (1997) 3 SCC 641 are not applicable to this case."
(iv) The learned Senior counsel for the appellants further submitted that the seniority in the cadre of Grade-II Police Constable was the basis for further promotions to the post of Naik in the rank of Grade-I Police Constable, https://www.mhc.tn.gov.in/judis 17/63 W.A No. 732 of 2022 Havildar in the rank of Head Constable and to the post of Sub-Inspector of Police. Such claim made by the respondents 1 to 50/writ petitioners, if granted, would affect 11790 police personnel (1993 batch) and 10000 police personnel (1997 batch) totalling 21790 police personnel. Whereas, it has been pleaded in the writ petition that it would only affect a mere 150 persons working as Sub- Inspectors of Police in the battalion as on date. On the other hand, any such revision claimed by the respondents 1 to 50/writ petitioners would affect 28% of police personnel presently working in Category-3, Category-2 and category-1.
(v) Referring to the proceedings dated 19.07.2018 of the Additional Director General of Police, relied on by the respondents 1 to 50 in the writ petition, the learned Senior counsel for the appellants submitted that it relates to fixation of inter-se seniority between the Sub-Inspectors of Police directly recruited under the Departmental quota and the persons recruited under Open Quota. Further, the said order relates to candidates sent for training in the second batch as left out persons in the first batch due to various persons and it cannot be relied on by the respondents 1 to 50. In the present case, the segregation of the candidates selected in the 1995-1996 recruitment drive, in two batches for training, was made based on range-wise selection as well as marks obtained PRS within the batch in accordance with Rule 24 (d) of the https://www.mhc.tn.gov.in/judis 18/63 W.A No. 732 of 2022 TNPSS Rules.
(vi) With respect to the decision of the Honourable Supreme Court in A. Raghu's case relied on by the respondents 1 to 50 in the writ petition, the learned Senior counsel for the appellants submitted that the selection for sending the candidates for training in this case was made based on the range wise selection among the candidates. Further, the Range Selection Board was abolished by the State in the year 2006 and therefore, the decision of the Honourable Supreme Court cannot be made applicable to the facts of this case.
(vii) Lastly, it is submitted by the learned Senior counsel for the appellants that the respondents 1 to 50/writ petitioners, in all fairness, ought to have impleaded the appellants as party respondents in the writ petition, but they failed to do. The learned Judge also, without directing the respondents 1 to 50/writ petitioners to implead the appellants or other persons who are likely to be affected in the event of revision of seniority, entertained the writ petition and allowed it. The writ petition, according to the learned Senior counsel is barred by the principle of delay and latches and it is also liable to be dismissed on the ground of non-joinder of the appellants as parties. With these submissions, the learned Senior counsel for the appellants prayed for allowing https://www.mhc.tn.gov.in/judis 19/63 W.A No. 732 of 2022 this appeal by setting aside the order of the learned Judge.
7. (i) Mr. R. Viduthalai, learned Senior counsel appearing for the contesting respondents 1 to 50/writ petitioners would contend that the inter se seniority involved in the writ petition was confined between the appellants and the respondents 1 to 50/writ petitioners viz., about 163 persons only and not for the assumed fancy figure of 21,790 persons as projected by the appellants (10000 + 11790). The appellants as well as respondents 1 to 50/writ petitioners were selected in one batch consisting of 10000 candidates and the remaining 11790 candidates belong to the earlier batch and therefore, the seniority or otherwise of the 11790 candidates has got nothing to do with the present dispute.
(ii) According to the learned Senior counsel for the respondents 1 to 50 / writ petitioners, during the year 1995-1996, the appellants as well as the respondents 1 to 50/writ petitioners were selected in the entry level post of Grade-II Police Constable and posted in the Tamil Nadu Special Police (TSP). As and when the subsequent selection(s) take place, those serving in TSP would be migrated/given conversion to Category-II known as Armed Reserve (AR), subject to willingness of the individual, otherwise, they will remain in TSP itself. Further, after working in AR/Category-II for two years or so, the https://www.mhc.tn.gov.in/judis 20/63 W.A No. 732 of 2022 incumbent would be given further conversion to category-I known as "local" and "law and order". Importantly, the seniority of those who had migrated already to AR and local, are treated with separate State seniority in the post of Sub-Inspector of Police in their respective categories-II and III. Thus, the present dispute relates only to 163 persons who have been remaining in TSP since the inception of their appointment as Grade-II Police Constable in the year 1997. Adding further, the learned Senior counsel submitted that the appellants and the contesting respondents 1 to 50/writ petitioners are remaining in TSP from the stage of Grade-III Police Constable to Naik / Grade-I Police Constable, Havildar / Head Constable and until now as Sub-Inspector of Police. Therefore, the question of 21790 persons will be affected, as projected by the appellants, is a sheer imagination to mislead this Court.
(iii) The learned Senior counsel for the respondents 1 to 50 / writ petitioners also submitted that there are about 10000 Grade-II Constables recruited in the year 1996. For the purpose of imparting training to the 10000 Constables recruited, it was decided to send them for training in two batches due to inadequate infrastructure facility and nothing else. However, it was sought to be projected that those who have secured higher marks in the recruitment process, were sent in the first batch and others were sent in the https://www.mhc.tn.gov.in/judis 21/63 W.A No. 732 of 2022 next batch. There was no such distinction made by the department inasmuch as those who have secured higher marks have been sent to the training in the second batch as well and those who have secured low marks have been sent to such training in the first batch. Therefore, the first batch of trainees cannot be reckoned as seniors or have secured higher marks and those who attended the second batch cannot be construed as their juniors or they have secured lesser marks. In other words, due to administrative convenience, the first batch of 5000 candidates were sent for training on 16.04.1997 and the remaining 5000 candidates were sent for such training on 31.10.1997. Thus, it is the contention of the learned Senior counsel that for the purpose of fixing the inter-se seniority, the marks secured in the Police Recruitment School alone will be the criteria as has been held by the Honourable Supreme Court in catena of decisions.
(iv) The learned Senior counsel for the respondents 1 to 50 / writ petitioners also proceeded to contend that out of the 10000 candidates selected, the process of conversion started from 2002 onwards. Initially, 3400 persons migrated to AR from the first batch and later 1300 persons gave their willingness to switch over to AR. The rest of them, about 300, including the appellants remained in TSP itself. In similar fashion, after exhausting the process of migration from the first batch of trainees, the process of conversion https://www.mhc.tn.gov.in/judis 22/63 W.A No. 732 of 2022 from the second batch commenced and about 275 persons, including the respondents 1 to 50/writ petitioners have given their consent to go to AR in the year 2003. Thus, as of now, 163 persons including the appellants and contesting respondents 1 to 50 are working in TSP as Sub-Inspectors of Police. Therefore, the inter-se seniority of these 163 persons alone have to be revised not with reference to the batch in which training was imparted to them viz., first or second batch, among the 10000 candidates, but based on their date of joining the post. This is more so that those who had migrated to AR and then to Law and Order, have been given separate State Seniority among their respective batches. As such, they cannot now come to the category-III, after having migrated to AR or they are not seeking any seniority in the present writ petition. The respondents 1 to 50/writ petitioners, however, have no objection to modify the order passed by the learned Judge, confirming the inter-se seniority to the 163 persons or who are working in TSP alone as of now, as Sub-Inspector of Police.
(v) The learned Senior counsel for the respondents 1 to 50 / writ petitioners further submitted that the respondents 1 to 50/ writ petitioners are not seeking for recovery of excess salary paid to their batch mates as has been observed in the impugned order of the learned Judge. They want only to fix their inter-se seniority, as per the marks secured in the Police Recruitment https://www.mhc.tn.gov.in/judis 23/63 W.A No. 732 of 2022 School, as held by the Division Bench of this Court in W.A. No. 1581 of 2010 and the Honourable Supreme Court in A.Raghu's case (supra), which was followed in the subsequent Judgment of the Division Bench of this Court in W.A. No. 30 of 2022 dated 20.10.2022. Therefore, the inter-se seniority has to be fixed only as per the marks secured in the Police Recruitment School. The learned Judge also, by following the same, passed the order, which is impugned in this writ appeal. Therefore, the learned Senior counsel submitted that for clarity, it may be stated that the inter-se seniority is only among those persons who are now working in TSP/Category-III as Sub-Inspectors of Police, who were recruited in 1995-1996 as Grade-II Police Constables and remaining in TSP since then. Further, the notional seniority of respondents 1 to 50 shall be fixed without arrears of salary since the year 2008 when the appellants were promoted as Sub-Inspectors of Police in TSP and that, the inter-se seniority between the appellants and respondents 1 to 50 shall be fixed based on the marks obtained in the Police Recruitment School. If such a position is clarified, it will meet the ends of justice and it will not cause any prejudice to any one, besides it will be in accordance with Rule 24 (d) of Tamil Nadu Special Police Subordinate Service Rules, 1978.
(vi) The learned Senior counsel appearing for the respondents 1 to 50 also submitted that if the inter-se seniority is fixed as per the dictum laid down https://www.mhc.tn.gov.in/judis 24/63 W.A No. 732 of 2022 by the Honourable Supreme Court on the basis of the marks secured in the Police Recruitment School and by giving notional seniority to the respondents 1 to 50, both the appellants and respondents 1 to 50 will be benefited while getting further promotion to the post of Inspector of Police in due course. The learned Senior counsel therefore reiterated that the respondents 1 to 50 are not seeking for arrears of pay, but only notional seniority in the cadre of Sub-Inspector of Police. This is in accordance with Rule 24 (d) of the TNSPSS Rules, which mandates fixing of inter-se seniority only based on the marks secured in the Police Recruitment School. However, by ignoring this legal position, the official respondents 51 to 53 have fixed the inter-se seniority by applying the marks secured in the selection process, instead of the marks secured at the Police Recruitment School.
(vii) With reference to the plea of the appellants that the selection of the appellants and the respondents 1 to 5 was range wise and therefore, those who secured higher marks in the selection were treated as seniors to respondents 1 to 50/writ petitioners, it is submitted by the learned Senior counsel for the respondents 1 to 50 that it is an admitted fact that the appellants as well as respondents 1 to 50/writ petitioners were selected as Grade-II Police Constables by a common/single notification. The initial selection was made taking note of the administrative exigencies in different https://www.mhc.tn.gov.in/judis 25/63 W.A No. 732 of 2022 Districts. But, the fact remains that selection was a single batch selection made under one notification. The first batch of 5000 candidates representing the appellants batch were drawn from different zones and they do not belong to only one zone. Therefore, this plea of the appellants cannot be sustained under law and it is liable to be rejected.
(viii) In effect, it is the submission of the learned Senior counsel appearing for the respondents 1 to 50/writ petitioners that the respondents 1 to 50 / writ petitioners as well as the appellants were given the same seniority upto the level of Havildar/Head Constables. However, when it came to the rank of Sub-Inspectors of Police, the respondents 1 to 50/writ petitioners have been pushed behind on the ground that they were sent to the training in the second batch. According to the learned Senior counsel, all those who were selected by way of a single selection process through one common notification, has to be treated as having been recruited in the same batch. The year on which the respondents 1 to 50/writ petitioners as well as appellants were sent for training as also the batch in which they were sent, is inconsequential since it is for administrative convenience and it has got nothing to do with the fixation of inter-se seniority. However, the date of selection is material and not the date of appointment to decide their seniority. In any event, with regard to inter-se seniority, the marks secured by the https://www.mhc.tn.gov.in/judis 26/63 W.A No. 732 of 2022 respondents 1 to 50/writ petitioners at the PRS shall be the only yardstick and not any other mode. Thus, according to the learned Senior counsel, any other mode adopted for fixation of inter-se seniority will result in discrimination among the persons who belong to the same class and cause prejudice to the respondents 1 to 50/writ petitioners.
8. (i) Mr. P. Kumaresan, learned Additional Advocate General appearing for the respondents 51 to 53 submitted that the appellants as well as the respondents 1 to 50/writ petitioners were recruited as Grade-II Police Constable in and by the same notification published by the Tamil Nadu Uniformed Services Recruitment Board for the year 1995-1996. Thereafter, the Government issued G.O. Ms. No. 1915, Home (Police-III) Department dated 27.12.1996 for imparting basic training to them at 12 Temporary training schools in two phases i.e., 5000 recruits (Men and Women) inasmuch as infrastructure facility was not available to impart training to the entire new recruitees in one phase. Therefore, in the first phase, on 16.04.1997, 4949 Police Constables (Men and Women) were sent for basic training in the 12 temporary training schools based on the marks obtained by them in the recruitment process. Subsequently, on 31.10.1997, being the second phase, 4578 Police Constables (Men and Women) were sent for such training. After https://www.mhc.tn.gov.in/judis 27/63 W.A No. 732 of 2022 completion of training, they have been posted to TSP Battalions. The writ petitioners are those who were imparted with the training in the first phase and they are presently serving as Sub Inspectors of Police. Even those who were sent for the training in the second phase, were also promoted to the post of Sub Inspectors. While they were working as such, the 53rd respondent herein had published a combined seniority list of Havildars fit for promotion as Sub Inspector of Police. As per the seniority list, those who were sent for training in the first phase were promoted to the post of Sub Inspectors of Police on 03.07.2008, but those who were sent for training in the second phase were given such promotion after ten years on 25.09.2018. Aggrieved by the belated promotion conferred to them from 25.09.2018, the respondents 1 to 50 herein preferred Writ Petition No. 14410 of 2020 praying to grant retrospective promotion on par with their batchmates, who were promoted as Sub-Inspectors of police with effect from 03.07.2008, with all consequential benefits. The said writ petition was allowed by the learned Judge on 24.08.2021 holding that they are entitled to be conferred with notional promotion on par with their batchmates and it was also implemented. The order dated 24.08.2021 was also ordered to be implemented by the 52nd respondent in and by a proceeding dated 23.03.2022.
(ii) The learned Additional Advocate General appearing for the https://www.mhc.tn.gov.in/judis 28/63 W.A No. 732 of 2022 respondent authorities invited the attention of this Court to the order dated 27.06.2017 passed in WP Nos. 36280 of 2015, 1827 of 2015, 4355 of 2015, 9939 of 2016 and 2761 of 2017, which were filed for various reliefs inter alia to quash G.O. Ms. No. 461 Home (Pol.VI) Department dated 10.6.2009 insofar as it amends Rule 25 of the Special Rules for the Tamil Nadu Police Subordinate Services, inserting proviso to the effect that the seniority of the Sub Inspectors of Police directly recruited from the Department Quota will be fixed above the direct recruits selected for open quota in the same year and G.O. Ms. No.196 Home (Police III) Department dated 8.3.2005 insofar as it protects the seniority of Personnel who complete the training at later point of time from the regular batch and consequently direct the Respondents to draw the seniority list of Women Sub Inspectors of Police recruited for the year 2001-2002 in accordance with Rules and effect promotions to the post of Inspector of Police on the basis of the seniority list so drawn and in accordance with law. After considering the rival submissions, by order dated 27.06.2017, this Court concluded as follows:
"6. Since the proposal for fixation of seniority to 20% of departmental quota candidates also has not been materialised, this Court directs the respondents to do the needful, if necessary, for fixing 20% seniority to the departmental quota candidates based on the proposal sent to the Government and after carrying out the necessary amendment in the Special Rules for Tamil Nadu Police Subordinate Service. Thereafter, the respondents shall prepare the seniority list after obtaining necessary objections from the concerned person. In the meanwhile, if any person has been given promotion temporarily, the same need not be disturbed. Needless to mention that once the seniority list is finalised, they have to work out by giving due place to all the persons and if https://www.mhc.tn.gov.in/judis 29/63 W.A No. 732 of 2022 necessary, by reverting the persons who were wrongly given promotion temporarily. The said exercise shall be done within a period of three months from the date of receipt of a copy of this order. With these observations, all the writ petitions are disposed of accordingly...."
(iii) It is further submitted on the side of the respondent authorities that as per the above order, the seniority of 72 candidates selected during 2001-2002 as Women Sub-Inspector of Police and who were sent for training belatedly on 25.10.2005, 14.05.2007 and 20.12.2013, has been fixed along with the first batch of candidates, who have been sent for training on 15.09.2004 as per proviso to Rule 25 of Special Rules of TNPSS. It was also stated that the seniority of directly recruited Sub-Inspectors of Police (category-2, Class-I) shall be fixed on the basis of the marks obtained in the final examination in Police Training College. In view of the same, the Director General of Police was directed to revise the seniority of directly recruited Sub-Inspectors of Police during the year 1997-1998 as per the marks obtained in the Police Training College, to prepare a fresh seniority list in a combined manner by clubbing the candidates sent for training in two different batches by assigning revised seniority numbers except for candidates. Accordingly, the inter-se seniority, as a matter of uniform policy, was revised for the above batch of Sub-Inspectors of Police. In similar fashion, the prayer of the respondents 1 to 50/writ petitioners was considered inasmuch as they and the appellants were recruited as Grade-II Police Constable in the same recruitment https://www.mhc.tn.gov.in/judis 30/63 W.A No. 732 of 2022 notification published by Tamil Nadu Uniformed Services Recruitment Board for the year 1994-1995. In any event, the respondents 1 to 50/writ petitioners made a claim for fixation of seniority after 24 years by filing Writ Petition No. 14410 of 2020 and got their promotion from the rank of Grade-II Police Constables to Havildar equally in various TSP Battalions. Therefore, the learned Additional Advocate General submitted that there is no disparity in grant of promotion upto Havildars. However, disparity is raised only after getting promotion to the post of Sub-Inspector of Police.
(iv) The learned Additional Advocate General further proceeded to contend that the department has sent the appellants for training in the first phase over and above the respondents 1 to 50 / writ petitioners based on the marks obtained in the selection process. Their seniority was not decided according to the marks obtained by them in the initial selection process. Even though the selection was made in Range wise, the seniority has to be fixed based on the marks obtained in the PRS. In any event, by proceedings dated 23.03.2022 of the 52nd respondent/Director General of Police, orders have been issued to implement the order of the learned Judge, which is impugned in this writ appeal. Therefore, if the order passed by the learned Judge is interfered with, it would cause chaos and administrative inconvenience in carrying out the exercise of re-fixation or revision of the inter se seniority https://www.mhc.tn.gov.in/judis 31/63 W.A No. 732 of 2022 among the appellants as well as respondents 1 to 50 herein. Accordingly, the learned Additional Advocate General prayed for dismissal of this appeal.
9. (i) Mr. Singaravelan, learned Senior counsel appearing for the respondents 54 and 55 submitted that the respondents 1 to 50 / writ petitioners filed the writ petition before the learned Judge without impleading the appellants as well as the respondents 54 and 55, who are necessary parties for adjudication of the same. When the respondents 1 to 50 / writ petitioners claim seniority over and above the appellants and others, they ought to have impleaded all the parties who are likely to be affected in the event of revision of seniority. In such event, the learned Judge ought not to have entertained the writ petition filed by the respondents 1 to 50/ writ petitioners and ought to have dismissed the writ petition for non joinder of necessary parties. On the other hand, the learned Judge allowed the writ petition and directed the official respondents to re-fix the seniority without hearing the persons who are likely to be affected. Adding further, the learned senior counsel submitted that the appellants as well as the respondents 54 and 55, who were already given promotion, have not been impleaded as parties, however, their seniority is sought to be disturbed. In this regard, the learned Senior counsel placed reliance on the decisions in (i)Ramachandra Shankar Deodhar vs. State of Maharashtra [AIR 1985 SC 167]; (ii)Prabodh Verma vs. State of Uttar https://www.mhc.tn.gov.in/judis 32/63 W.A No. 732 of 2022 Pradesh [(1984) 4 Supreme Court Cases 251 = AIR 1985 SC 167];
(iii)Ishwar Singh vs. Kuldeep Singh [1995 Supp (1) Supreme Court Cases 179]; (iv)Bhagwati vs. Subordinate Services Selection Board, Haryana [1995 Supp (2) Supreme Court Cases 663]; (v)Central Bank of India vs. S. Satyam [(1996) 5 Supreme Court Cases 419]; (vi)Ramrao vs. All India Backward Class Bank Employees Welfare Association and others [AIR 2004 Supreme Court 1459]; and (vii)Tridip Kumar Dingal and others vs. State of West Bengal [(2009) 1 Supreme Court Cases 768].
(ii) It is further submitted by the learned Senior counsel for the respondents 54 and 55 that the writ petition filed by the respondents 1 to 50 herein ought to have been dismissed by the learned Judge on the ground of delay and laches. The writ petition has been filed by the respondents 1 to 50 leisurely after submitting a representation on 24.09.2010 and upon receiving a reply on 19.11.2010. Without challenging the same, they made representations on 09.12.2010, 28.06.2013 and 09.07.2020 and thereafter, filed the writ petition bearing No. 14410 of 2020. Thus, the respondents 1 to 50 / writ petitioners have repeatedly given representations to revive a stale or dead claim; and that, the writ petition filed without challenging the reply dated 19.11.2010, is not maintainable. Continuing further, it is submitted that when https://www.mhc.tn.gov.in/judis 33/63 W.A No. 732 of 2022 seniority and promotion of others is sought to be challenged, it should have been done within a reasonable time. By reason of lapse of time, the rival candidates accrue service right and over a period of time, such right cannot be overturned. In this case, the respondents 1 to 50/ writ petitioners themselves admitted that the appellants were given promotion even in the year 2008 against which they have submitted a representation to the department. Their representation was also rejected on 19.11.2010. In such circumstances, they ought to have questioned the order of rejection, but they did not do so. To drive home this legal proposition that the writ petition filed by the respondents 1 to 50 is liable to be dismissed on the ground of delay, the learned senior counsel referred to the decisions in (i)Chubba Jamir and others vs. State of Nagaland [2009 (15) Supreme Court Cases 169]; (ii)Sadhashiv Prasad Singh vs. Harendar Singh [AIR 2014 Supreme Court 1078 = (2014) 1 SCALE 230]; (iii)State of Uttranchal and another vs. Shiv Charan Singh Bhandari and others [(2013) 12 Supreme Court Cases 179 = (2013) 11 SCALE]; (iv)Northern Indian Glass Industries vs. Jawsant Singh and others [AIR 2003 Supreme Court 234 = (2003) 1 Supreme Court Cases 335]; and (v)Printers (Mysore) Limited vs. M.A. Rasheed and others [(2004) 4 Supreme Court Cases 460].
(iii) The learned Senior counsel appearing for the respondents 54 and https://www.mhc.tn.gov.in/judis 34/63 W.A No. 732 of 2022 55 further contended that in the writ petition, it was casually remarked that the appellants are not necessary parties as their promotion is not challenged by the writ petitioners and no prejudice will be caused to them. On the basis of such a plea, the learned Judge passed the order impugned herein and it has the tendency to disturb the settled seniority of the appellants and others. However, the learned Senior counsel submitted that promotion can be given to the respondents 1 to 50/writ petitioners by placing them after the appellants, if the Government decides to implement the order of the learned Judge. In this context, reliance has been placed on the decision of the Honourable Apex Court in 2010 (4) Supreme Court Cases 290 to contend that the right to consider a candidate for promotion is a fundamental right, but such right cannot be allowed to defeat the right of the others without giving an opportunity to them.
(iv) The learned Senior counsel appearing for the respondents 54 and 55 also submitted that the respondents 1 to 50 / writ petitioners cannot claim themselves to belong to the same batch as that of the appellants. They belong to the subsequent batch even as per their pleadings. The notification for selection was issued to recruit 10,000 candidates and based on the marks secured by the individual candidates, 5000 candidates were sent for training in the first phase and the writ petitioners were given such training in the second https://www.mhc.tn.gov.in/judis 35/63 W.A No. 732 of 2022 phase. Such a classification to send the recruited candidates for training in two phases, depending upon the marks secured by them in the selection process, is a reasonable classification. In other words, the appellants were imparted with the training in the first batch on 16.04.1997 and the respondents 1 to 50/writ petitioners were sent for training only on 31.10.1997. If they have had any grievance, the respondents 1 to 50/writ petitioners ought to have ventilated it in the year 1997 itself. However, the writ proceedings have been initiated after 26 years upon completing the training. In this context, the learned Senior counsel placed reliance on the decision of the Honourable Supreme Court in Prabodh Varma vs. State of U.P. [1984 (4) Supreme Court Cases 251] and contended that the writ petition is nothing short of an attempt to unsettle the settled seniority and promotion after long lapse of time. Notwithstanding the said legal position, the department justified the stand taken by the respondents 1 to 50/writ petitioners without even taking note of the fact that they were sent to the training in the second batch. Therefore, the claim of the respondents 1 to 50/writ petitioners is against the spirit of Articles 14 and 16 of the Constitution of India. Thus, according to the learned senior counsel, the respondents 1 to 50/writ petitioners are unequals and they cannot be treated along with the equals such as the appellants and the respondents 54 and 55. The learned Senior counsel therefore sought to protect the interest of the appellants as well https://www.mhc.tn.gov.in/judis 36/63 W.A No. 732 of 2022 as the respondents 54 and 55, by setting aside the order passed by the learned Judge in the writ petition, which is impugned herein.
DISCUSSION AND FINDINGS
10. We have heard the learned counsel for the parties and also perused the materials available on record.
11. We are first inclined to take up the issue of non-joinder of necessary parties to the writ petition. It is trite law that the persons who are likely to be aggrieved by the order of the court, must be impleaded as a party to the proceedings in conformity with the principles of natural justice. Indisputably, the appellants and the respondents 54 and 55 herein would be the persons aggrieved by the order of the learned Judge as the dispute regarding seniority in the cadre of Sub-Inspector of Police is only among the persons who have decided to stay back in category-III, TSP and not with regard to Category -II, AR and Category-I, Local/Law and Order and not with regard to all the 21790 persons. We do not find any logic in it as the seniority itself is sought to be revised inter-se among the 1995-1996 batch of 10000 people and that too among the persons who are continuing in TSP, Category-III. The judgments relied upon by the learned Senior Counsel for the appellants and respondents 54 and 55 lay down that atleast some of the parties who are likely to be prejudiced by the decision affecting their right are to be impleaded. The https://www.mhc.tn.gov.in/judis 37/63 W.A No. 732 of 2022 law on this point is well settled. It will be useful to refer to some recent judgements of the Hon’ble Supreme Court on this aspect.
(a) State of Assam v. Union of India, (2010) 10 SCC 408 : (2010) 4 SCC (Civ) 187 : (2010) 2 SCC (L&S) 812:
“16.We respectfully agree with the observations made by this Court in Udit Narain case [AIR 1963 SC 786] and adopt the same. We may add that the law is now well settled that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding.
….
23.We are also unable to comprehend any possible reasons for the Union of India to omit the State of Assam from the array of parties in the writ appeals filed before the Division Bench of the High Court. The fact remains that they were not made parties to the proceedings. The High Court, in our view, while allowing the appeals filed by the Union of India and shifting the liability of payment of salary/wages to the Voluntary Female Attendants on the State of Assam, should have taken a little more care and caution to find out whether the State of Assam is arrayed as a party to the proceedings and whether they are served with the notice of the appeals and in spite of service, whether they have remained absent. This is the least that is expected from the Court. Without making this small verification, the Division Bench of the High Court has fixed huge recurring financial liability on the State Government. In our opinion, in matters of this nature, even by mistake of the party, the proper parties were not arrayed in the proceedings, it is the duty of the Court to see that the parties are properly impleaded. It is well-settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the Court should not embark upon the consideration and the correctness of such decision in the absence of such persons.”
(b) Ajay Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579 : 2021 SCC OnLine SC 1195:
50.In the recent case of Mukul Kumar Tyagi v. State of U.P. [Mukul Kumar Tyagi v. State of U.P., (2020) 4 SCC 86 : (2020) 1 SCC (L&S) 736], Ashok Bhushan, J., laid emphasis that when there is a long list of candidates against whom the case is proceeded, then it becomes unnecessary and irrelevant to implead each and every candidate. If some of the candidates are impleaded then they will be said to be representing the interest of rest of the https://www.mhc.tn.gov.in/judis 38/63 W.A No. 732 of 2022 candidates as well. The relevant portion of para 81 from the judgment is reproduced below : (SCC p. 119) “81. … We may further notice that the Division Bench [Deepak Sharma v. State of U.P., 2019 SCC OnLine All 5970] also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but the Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity.”
51.The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal.”
12. In the present case, the respondents 1 to 50 have not impleaded the appellants and the respondents 54 and 55, whose seniority would be likely to be affected. What is evident from the pleadings in the writ petition and from the order of the learned Judge is that the maintainability of the writ petition on account of non-joinder of necessary party, was not pleaded and contended. If it had been pleaded specifically, then, it would be the bounden duty of the writ https://www.mhc.tn.gov.in/judis 39/63 W.A No. 732 of 2022 petitioners to implead all the necessary parties or atleast a fraction of them before the writ petition was disposed. Of-course, the official respondents in their counter affidavit to the writ petition, have raised a plea that alteration of seniority would affect the seniority of a large number of personnel, but nevertheless they had not insisted for the dismissal of the writ petition. On the first premise, it is the duty of the person, who approaches the court for a specific relief to implead all the necessary parties. On the other hand, upon failure of such person, the learned Judge could have impleaded the necessary parties suo motu, as held by the Apex Court in State of Assam v. Union of India (Supra).
13. Importantly, it is to be noted that the respondents 1 to 50 / writ petitioners have filed an affidavit stating that their claim is only with regard to the fixation of inter-se seniority between the Sub-Inspector of Police functioning in TSP and that, they do not insist for any monetary benefits or action against the appellants and others, except the re-fixation of the seniority from their actual date of eligibility to avail the benefit of the same, when the vacancy arises for filling up the post of Inspector of Police. Considering the above submission together with the fact that as on date, all the candidates from the 1997 batch retained in TSP, have been promoted to the post of https://www.mhc.tn.gov.in/judis 40/63 W.A No. 732 of 2022 Sub-Inspector of Police, that the appellants and the respondents 54 and 55 are already on record in the appeal and contested the same on merits, no useful purpose would be achieved by remanding the back the matter to the writ court again for impleading the parties and to hear the matter afresh. Hence, this court, considering the facts and circumstances of the case, while rejecting the contention of the appellants to reject the appeal on the technical aspect, decides to proceed further to decide the other grounds raised.
14. Coming on to the issue of claim of seniority based on Rule 24 (d) of the TNSPSS, which has been held in favour of the respondents 1 to 50 /writ petitioners based on the decisions rendered by the Hon’ble Apex Court in A. Raghu v. Government of Andhra Pradesh and others [(2015) 14 SCC 221] and by the order of the Division Bench of this Court in The Secretary to Government, Home (Police-3) Department and another v. J.Pratap Prem Kumar in W.A.No.1581 of 2010 dated 05.09.2011. According to the learned Senior Counsel appearing for the appellants, the judgments and Rule 24 (d) which have been the subject matter, are not applicable to the present case, as the selection was Range wise and training for Range wise selection was done away only in 2006. It was further contended that the fixation of seniority is based on the batch in which they were sent for training and not the marks https://www.mhc.tn.gov.in/judis 41/63 W.A No. 732 of 2022 scored by the candidates in the PRS to fix the interse-seniority among the candidates forming part of same batch. It was also contended by the learned Senior counsel that the decision to send the persons for training by different batches was due to Range wise selection, which contention has been contradicted by the learned Additional Advocate General who has taken a clear stand that all the 10000 candidates are forming part of the same selection and that, they were split and sent for training in two batches as the State, at that point, did not have adequate facility to send all of them for training at the same time and also based on the marks scored by them at the time of initial selection. The learned Senior Counsel appearing for the respondents 54 and 55 contended that sending the candidates for training in separate batches based on the marks secured by them in the initial selection is permissible and as the rejection order dated 19.11.2010 has not been challenged, the same has attained finality. On the other hand, on behalf of the Respondents 1 to 50 /Writ Petitioners, Rule 24 (d) was pressed into service to contend that the final marks obtained in the Police Recruitment School alone is to be considered for fixing the seniority as it was a single selection process and the recognition of administrative exigencies in different Districts cannot make it a different selection process.
15. We have considered all the materials and the contentions relevant https://www.mhc.tn.gov.in/judis 42/63 W.A No. 732 of 2022 to the issue under determination. The contention of the appellants that the selection being range wise and hence, it is not a single selection process, is not acceptable. The notification was for selection of 10000 Grade-II Constables and the appointment subsequent thereto was by a joint process. The division of the candidates on range/district wise for administrative exigencies will not alter the nature of the selection process or the applicability of the rule to which the selectees have subjected themselves to. Further, as per Rule 37 of the TNSPSS, which deals with the Area of Service, a member of service shall be liable to serve in any part of the State of Tamil Nadu or when so ordered by the state government in any part of the India, outside such State. Therefore, the contention that selection was range wise has no significance, more so when it comes to fixation of seniority. A candidate is sent for training after the selection. There is no rule which states that the candidates with higher marks in the initial selection will be sent for training first. The marks secured by them in the selection is not a yardstick to divide the candidates into different categories for sending to training. As per Rule 24 (d), for the purpose of fixing the seniority, the marks secured by them at the Recruitment School alone is relevant, while so, it is not for the State to create an artificial division by picking and choosing the candidates for training based on the marks scored by them in the selection. Once the candidates are part of same notification and https://www.mhc.tn.gov.in/judis 43/63 W.A No. 732 of 2022 selection, the date on which they are sent for training is irrelevant. It would be relevant to recall the stand of the State in para 3 of their counter affidavit filed in the writ petition, wherein they have claimed that the Tamil Nadu Uniform Service Recruitment Board (TNUSRB), Chennai has conducted the recruitment of 10,000 Gr.II PC (Men and Women) for the year 1995-1996 and furnished the list of selected 10,000 candidates for issuance of appointment orders. In the same paragraph, it was stated that by G.O Ms. No 1915 Home (Pol.3) Department dated 27.12.1996, the recruited candidates were divided into two batches for training, since the infrastructure facilities to train all the candidates at the same time was then not available in the Training Recruitment School. We have already held that the marks secured by the candidates in the initial recruitment process is not a yardstick. The lack of infrastructure cannot be attributed to the candidates and the division cannot take away the right available to them under the Rules. Irrespective of the fact that they are sent for training on different dates, as long as the selection is by a single notification and when the selection of all the 10000 candidates has been undertaken by a single process and communicated by a common communication by the TNUSRB, they are part of the same selection. In this context, the following portion of the Judgment of the Apex Court in A. Raghu v. State of A.P., (2015) 14 SCC 221 : (2016) 1 SCC (L&S) 763 : 2015 SCC OnLine SC 268 https://www.mhc.tn.gov.in/judis 44/63 W.A No. 732 of 2022 (Supra) becomes relevant, which reads as under:
“16. The solitary issue that arises for consideration at our hands is, whether the candidates selected in furtherance of the Notification dated 22-1-1991, issued by the Recruitment Board, constitute one batch. Or whether, they constitute two batches of candidates, based on the separate dates, when they were deputed for training.
17. The contention advanced at the hands of the learned counsel for the appellants before this Court was, that the selected candidates are liable to be treated as two batches of candidates. The first batch, according to the appellants, was the batch of candidates deputed for training on 15-7-1991. And the second batch, according to the appellants, would comprise of candidates who were deputed for training on 14-6-1992.
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Consideration One
20. We shall, in the first instance, examine the seniority position only with respect to Munuswamy. The name of Munuswamy was included in the list of selected candidates issued by the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad, vide letter dated 11-4-1991/ 7-5-1991. It is not a matter of dispute, that the aforesaid Munuswamy was originally deputed for training at the police training college on 15-7-1991. Munuswamy, however, could not complete his training on account of the fact, that he did not participate in the examination conducted at the end of the training, due to personal reasons. The aforesaid Munuswamy was allowed to complete his training, along with the batch of candidates deputed for training in the succeeding batch, on 14-6-1992. The above factual position, which was duly taken into consideration by the Administrative Tribunal, and by the High Court, was not disputed during the course of hearing before us.
21. The question which arises for our consideration is, whether Munuswamy would be entitled to be included in the seniority list, along with the batch of candidates, with whom he was originally deputed for training on 15-7-1991, or with the batch of candidates who were deputed for training thereafter, on 14-6-1992.
22. Having given our thoughtful consideration, and keeping in mind the basic principle underlying the relevant proviso to Rule 15 (extracted at the beginning of this judgment), we are of the considered view, that the mandate for the determination of seniority under the aforesaid proviso is to the following effect. Firstly, inter se seniority of Sub-Inspectors of Police is not to be determined in accordance with the merit list drawn up, “at the time of their selection”. And secondly, inter se seniority of Sub-Inspectors of Police has to be determined on the basis of “the aggregate of marks obtained by each https://www.mhc.tn.gov.in/judis 45/63 W.A No. 732 of 2022 probationer”, “at the final examination” on the conclusion of their training, at the police training college(s).
23. Insofar as the aforesaid Munuswamy is concerned, it is not open to the candidates deputed for training in the first instance to contend, that though Munuswamy's name was included in the list of provisionally selected candidates issued on 11-4-1991/7-5-1991, his seniority ought to be determined along with the candidates deputed for training later. It is apparent, that insofar as Munuswamy is concerned, since his name was included amongst the names of candidates provisionally selected as Sub-Inspectors of Police vide letter dated 11-4-1991/7-5-1991, those deputed for training vide the same letter (dated 11-4-1991/7-5-1991) cannot be permitted to contend, that his seniority cannot be determined along with them. The abovementioned course, suggested by the learned counsel for the appellants, is not open, because the same would give primacy to something beyond the purview of the proviso to the rule in question. We have no doubt in our mind, that Munuswamy, must figure in the seniority list along with those deputed for training on 15-7-1991, for the simple reason, that his name existed in the list of names (including the appellants), deputed for training vide letter dated 11-4-1991/7-5-1991. There can, therefore be no doubt whatsoever, that insofar as Munuswamy is concerned, even though he completed his training in the course which commenced from 14-6-1992, his position in the inter se seniority list was bound to be reflected along with those with whom he was deputed for training, according to the aggregate of marks obtained by him, on the completion of his training at the police training college, in terms of Rule 15.
Consideration Two
24. Insofar as this step is concerned, we shall exclusively take into consideration the manner of determination of seniority of candidates appointed as Sub-Inspectors of Police, against the vacancies belonging to the PE, PM and SP quotas, consequent upon the directions issued by the Administrative Tribunal, dated 30-7-1991 (while disposing of Original Application No. 29957 of 1991). In this behalf, it is relevant to mention, that the vacancies falling to each of the aforesaid quotas, was found to have been incorrectly determined by the State Government, while making appointments in furtherance of the Notification dated 22-1-1991. The Administrative Tribunal accordingly, directed the State Government, to recalculate the strength of the said quotas, and to make appointments. It is not a matter of dispute, that consequent upon the determination of the Administrative Tribunal, the quotas with reference to the aforesaid cadres, which had wrongly been determined, for each of the zones, were recalculated. The State Government on recalculation of the vacancy position, with reference to the PE, PM and SP quotas, appointed candidates from the aforesaid quotas, out of the selection process conducted by the Recruitment Board, in furtherance of the Notification dated 22-1-1991. Thereupon, they were deputed for training on 14-6-1992. It is, therefore apparent, that had the quotas been correctly determined by the State https://www.mhc.tn.gov.in/judis 46/63 W.A No. 732 of 2022 Government, these candidates would have been originally appointed along with others, when the letter dated 11-4-1991/7-5-1991 was issued by the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad. In the above eventuality, they would have been deputed for training in the very first instance on 15-7-1991. For no fault of theirs, despite their selection in the same recruitment process, which was conducted in furtherance of the Notification dated 22-1-1991, they were deputed for training on 14-6-1992. The delay in deputing the candidates belonging to PE, PM and SP quotas, squarely falls on the appointing authority, and not on the candidates who were subsequently deputed for training from the PE, PM and SP quotas. For exactly the same reason, as had been depicted under “Consideration One” above, we are of the view, that those deputed for training against the PE, PM and SP quotas on 14-6-1992, being not in any manner responsible for their not having been deputed along with the originally selected candidates on 15-7-1991, are liable to a fixation in the seniority list, in exactly the same manner as Munuswamy. This is liable to be done in terms of the mandate of the relevant proviso to Rule 15 aforementioned, by interspersing them along with those included in the original seniority list, by determining their position on the basis of the aggregate marks obtained by them, in the final examination, at the conclusion of their training at the police training college(s).
Consideration Three
25. In “Consideration One” and “Consideration Two” above, we have concluded, that even though the appointees in question were deputed for training on 14-6-1992, their seniority had to be determined along with the candidates who had been deputed for training on 15-7-1991. We shall now endeavour to consider the manner of fixing inter se seniority of the candidates, who were selected in the process of selection conducted in furtherance of the Notification dated 22-1-1991, by the Recruitment Board, but had not been appointed on account of the fact, that they did not fall within the number of vacancies advertised. It is however relevant to notice, that after the issuance of the letter dated 11-4-1991/7-5-1991, whereby provisionally selected candidates were deputed for training to fill up the advertised vacancies for the posts of Sub-Inspector of Police in all the seven zones, it came to be realised, that all the provisionally selected candidates did not join the police training college(s) for the said training. So far as Zone V (Warangal range) is concerned, only 58 candidates joined training. At that very moment, it was open to the appointing authority to depute further candidates for training, out of those whose names fell immediately below the names of candidates deputed for training vide letter dated 11-4-1991/7-5-1991, against the balance vacancies. The competent authority, however, delayed in deputing the names of these candidates. It eventually deputed these candidates for training on 14-6-1992.
26. From the factual position depicted hereinabove, it is not possible for us to accept, that the candidates, who were deputed for training on https://www.mhc.tn.gov.in/judis 47/63 W.A No. 732 of 2022 15-7-1991, and those deputed for training on 14-6-1992 to fulfil the deficiency, can be described as two different batches. The selection process having been joint, and in furtherance of the same Notification dated 22-1-1991 (issued by the Recruitment Board), it is inevitable for us to conclude, that the candidates deputed to the two different courses of training (on 15-7-1991 and 14-6-1992) were essentially candidates belonging to a singular batch, who were selected through a common process of selection. In fact, the instant inference, insofar as the issue of inter se seniority is concerned, is inevitable, as the dates on which the candidates were deputed for training, are inconsequential, so far as Rule 15 is concerned.”
16. It will also be useful to refer to the Judgment of the Apex Court in Col. A.S. Iyer v. V. Balasubramanyam, (1980) 1 SCC 634 : 1980 SCC (L&S) 145, wherein, it was held as follows:
“45.Let us eye the issue from the egalitarian angle of Articles 14 and 16. It is trite law that equals shall be treated as equals and, in its application to public services, this simply means that once several persons have become members of one service they stand as equals and cannot, thereafter, be invidiously differentiated for purposes of salary, seniority, promotion or otherwise, based on the source of recruitment or other adventitious factor. Birthmarks of public servants are obliterated on entry into a common pool and our country does not believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic assumption for the application of this principle is that the various members or groups of recruits have fused into or integrated as one common service. Merely because the sources of recruitment are different, there cannot be apartheidisation within the common service.”
17. In the judgment reported in Ajay Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579 : 2021 SCC OnLine SC 1195, the Apex Court has held as follows:
“Discussion
21. It is an admitted position that there was one selection for the https://www.mhc.tn.gov.in/judis 48/63 W.A No. 732 of 2022 three streams i.e. Agricultural, Mechanical and Civil. It is also an admitted fact that there is one cadre of Junior Engineers in the Minor Irrigation Department and therefore, there has to be one seniority list of Junior Engineers. The written examination conducted by the Commission comprised of two papers, one compulsory for all streams and the second paper of the specific stream of Engineering whether Agricultural, Mechanical or Civil. So, in effect, there was one examination. Thereafter, interviews were conducted. The Commission, in its affidavits dated 7-4-2019 and 13-5-2019 filed before the High Court, had clearly stated that there was one selection for one examination. However, on account of some litigation and stay granted by the High Court the list of the stream of the Civil Engineering was sent much later after about 10 to 11 months. The Commission also admitted in its supplementary counter-affidavit before the High Court that it had not prepared a combined merit list of all the three streams but had left it for the appointing authority to prepare the same.
For sake of accuracy, Paras 6, 8, 9 and 10 of the supplementary counter- affidavit dated 7-4-2019 filed on behalf of the Commission are reproduced below:
“6.That it is noteworthy to state that during the selection process against the vacancies available in the Civil Branch, stay order dated 1-3- 2000 was passed by the Lucknow Bench of this Hon'ble Court in Siyaram v. State of U.P. [Siyaram v. State of U.P., Writ Petition No. l066 of 2000, order dated 1-3-2000 (All)] and therefore in compliance of order dated 1-3-2000, recommendation was sent to the department at a belated stage i.e. on 7-11-2000.
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8.That since the required educational qualification was different for all three branches, therefore the recruitment was done separately and thereafter the lists/recommendations were sent separately to the department in respect of selected candidates.
9.That it is further submitted that recruitment on the post of junior engineer is done from two main sources i.e. direct recruitment and departmental promotion therefore the inter se seniority list shall be finalised in accordance with Rule 8 of the U.P. Government Servant Seniority Rules, 1991. Therefore, the seniority list of the petitioners shall be finalised by the Minor Irrigation Department only and there is no role of the answering respondent in preparation of seniority list by the Minor Irrigation Department.
10.That it is further submitted that the preparation and publication of the seniority list of the Junior Engineers is the job of the department concerned and if any discrepancy occurs, the department concerned can clarify the same.” ………….
23. The appointing authority, in fact, committed an error in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as https://www.mhc.tn.gov.in/judis 49/63 W.A No. 732 of 2022 per the date of receipt of three select lists. It is not the case either of the private respondents, the State or the Commission that appointment letters have been issued separately as and when the select lists were received. In fact, the appointment letters of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 2000. Apparently by an oversight, the appointing authority failed to prepare the combined seniority list as required under the 1991 Seniority Rules, be it Rule 5 or Rule 8 with respect to the selection of the appellants and private respondents.”
18. In the present case, not only the appellants, but also the respondents 1 to 50 /writ petitioners form part of same notification and hence, a common list of selected candidates consisting of all the 10000 candidates was forwarded by the TNUSRB to the government for issuance of the government order. Further, they all have been promoted as Havildars/Head Constables on the same day on 18.03.2002. The discrimination and violation of the Rules commenced thereafter while fixing the seniority and granting promotion. Much emphasis has been laid on the rejection order dated 19.11.2010 to contend that the request of the respondents 1 to 50 has been rejected and hence, unless it is challenged, the seniority cannot be questioned. We disagree with the said contentions for the following reasons:
(a) The representation dated 25.10.2010 was given only by seven women havildars without raising any dispute with regard to the marks earned by them in the Training School and seeking to promote them on par with their juniors. The same has been rejected by ordering for correction in the date of the appointment order of the Junior Havildars who were included in the https://www.mhc.tn.gov.in/judis 50/63 W.A No. 732 of 2022 promotion list for the year 2010-11 to indicate their appointment is by “After Noon” and that their names have been deleted from the probable list and those who have been promoted were ordered to be reverted. Since the juniors were removed from the list and reverted, it was thus held that promotion on par with them cannot be sought,
(b) The said rejection order neither speaks about the marks secured in the Training School nor about Rule 24 (d) of TNSPSS nor deals with the issues raised in the writ petition,
(c) The correction in the appointment order as AN or indication as FN is irrelevant as the recruitment was by a single notification and the process was jointly conducted. The Selection list forwarded by TNUSRB was also common comprising of all the 10000 candidates,
(d) The order passed is only an order in personam and is not disposed on merits. In short, the promotion on par with juniors was denied by reverting the juniors. Hence, the same cannot be cited as extinguishing the right of the writ petitioners,
(e) Subsequently, Seniority of Sub-Inspectors was refixed by G.O.Ms.No.439 dated 08.08.2011 based on the final marks obtained by them in Police Training School, similar orders for refixation of inter-se seniority among Sub-Inspectors were passed by the ADGP on 19.07.2018 and https://www.mhc.tn.gov.in/judis 51/63 W.A No. 732 of 2022 18.09.2018, by G.O.Ms.No.556 dated 31.12.2020, seniority of Sub-Inspectors sent for training on various dates was refixed based on the marks secured by them in the Training School,
(f) The subsequent representations dated 09.12.2010 and 10.08.2011 clearly specify that the promoted candidates had secured marks in the Training School,
(g) The respondents 1 to 50 / Writ Petitioners cannot seek promotion unless there is sufficient vacancy and refixation of seniority as and when their turn arrives.
19. Admittedly, the respondents 1 to 50 / writ petitioners have sent representations on 19.12.2010, 10.08.2011 and 09.07.2020 seeking to refix their seniority. Rule 24 (d) is clear insofar as fixation of seniority to the post of Police constables or Havildars that it must be based on the final marks obtained in the Training School and insofar as fixation of seniority in the post of sub-inspectors also, as per rule 25 (a) of the Special Rules for Tamil Nadu Police Subordinate Service, the same shall be fixed on the basis of marks obtained in the Training School. From the facts and the settled position of law, it is clear that the official respondents failed to follow the procedure as contemplated under the rules and initially, fixed the seniority based on the marks secured by the candidates within each batch by wrongly treating the https://www.mhc.tn.gov.in/judis 52/63 W.A No. 732 of 2022 candidates to form distinct category based on their date of training instead of treating them as candidates forming part of same selection. Hence, the same was rightly disagreed and the mandamus was issued to refix the seniority by the learned Judge. Hence, we find no reasons to interfere with the findings of the learned Judge on this aspect. The official respondents, who have not challenged the order of the learned Judge, subsequent to the order passed in the writ petition, have refixed the seniority of the respondents 1 to 50/writ petitioners from the date of selection and granted notional promotion to the petitioners.
20. Now, coming to the issue of delay/laches in approaching this Court, it has been vehemently contended by the learned Senior Counsel for the appellants and the respondents 54 and 55 by placing reliance upon the judgments refered above that the seniority once settled ought not to be disturbed, that the seniority is directed to be revised after 24 years, which is impermissible and the application for revision of seniority was not filed in time by refering to Section 40 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.
21. We have considered all the judgments relied upon by the https://www.mhc.tn.gov.in/judis 53/63 W.A No. 732 of 2022 appellants and the respondents 54 and 55, the relevant dates, the provisions and the documents. There cannot be any quarrel about the legal position. The seniority is to be challenged within the time stipulated under the law, if not, the seniority fixed, even if erroneous, may under certain circumstances, create a vested right in favour of the employees who have already been promoted.
The Judgments relied upon by the Learned Senior Counsels clearly lay down the above proposition. Now, let us juxtapose the position to the facts and the applicable provisions. Section 40 (6) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, which has been relied upon, reads as under:
“(6) Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of order fixing the seniority, as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not, however, be applicable to cases of rectifying orders, resulting from mistake of facts.”
22. A reading of the above provision makes its amply clear that the revision of seniority can be sought within three years from the date of appointment to such service or within a period of three years from the date of order fixing the seniority. In the present case, all the 10000 candidates were promoted as Havildars on the same date in 2002. The persons who had completed their training in the first batch in 1997 were granted temporary https://www.mhc.tn.gov.in/judis 54/63 W.A No. 732 of 2022 promotion on 03.07.2008 and the inclusion of appellants in the list for promotion to the post of Sub-Inspector for the year 2009-10 was itself affirmed only on 11.12.2009 and the promotion was granted subsequently. The respondents 1 to 50 /writ petitioners have submitted their representations on 09.12.2010 and 10.08.2011 within three years. It is trite law that a temporary promotion is a stop gap arrangement and will not confer any rights on such promotees. The temporary promotion order also makes it clear in this aspect. It is also pertinent to point out that the respondents 1 to 50 / writ petitioners were included in the panel for promotion for the year 2018-2019 by proceedings dated 31.08.2018 and the promotion was granted by proceedings dated 25.09.2018. The seniority becomes relevant only when there are sufficient vacancies and a panel is drawn. The next set of representions were given on 09.07.2020, within three years from the drawing of the panel in 2018. It is only when the representations were not considered by the official respondents and thereafter, the writ petition has been filed. Another exemption to the rule of delay or laches would be the plausible explanation for the delay and violation of any statutory rules in fixing the seniority. At this juncture, it would be useful to refer to the Judgment of the Apex Court in Ajay Kumar Shukla v.
Arvind Rai [(2022) 12 SCC 579 : 2021 SCC OnLine SC 1195], wherein, it was observed as follows:
https://www.mhc.tn.gov.in/judis 55/63 W.A No. 732 of 2022 “27.In view of the above legal proposition, we now examine the facts of the present case, firstly, as to whether there was delay of more than three to four years and secondly, if there was delay of more than three to four years, whether the same has been satisfactorily explained.
28.In October 2001, when the appointment letters were issued it carried a stipulation that the seniority would be determined later on as per rules. It is an admitted position that before 2006, the seniority list of the appellants was not notified. In March 2006, when the tentative list was published, it did not mention about the three select lists nor was this fact mentioned when the final seniority list was published on 5-9-2006. Rather, it clearly mentioned that the seniority list had been prepared on the basis of merit. This was in fact an incorrect statement. The seniority list had not been prepared on the basis of merit but on the basis of receipt of the three separate select lists one after the other. As the Agricultural list was received first on 28-9-1999, all the selected candidates of Agricultural stream were en bloc placed on the top, thereafter the Mechanical list was received on 6-1-2000, they were placed below the Agricultural stream and lastly, the Civil stream list was received on 7-11-2000, they were placed at the end.
29.Rules 5 and 8 of the 1991 Rules clearly mention that there shall be one list for one selection of direct recruits. Creating three separate lists for one selection was contrary to the provisions contained in Rules 5 and 8 of the 1991 Rules. The 2009 Rules clearly mention that seniority would be determined and prepared as per the 1991 Rules. Rule 5 of the 1991 Rules, dealt with the selections made only through direct recruitment whereas Rule 8 thereof dealt with the situation where seniority list is to be prepared of both the direct recruits and the promotees. However, the principles underlined in both these rules are the same that there has to be one list for one selection, as is clear from Rule 8(2)(a) and Rule 5 of the 1991 Rules.
30.Once it is established that the seniority list was prepared in contravention of the statutory provisions laid down in the 1991 Rules, the seniority list could be interfered with. The appointing authority would be bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list. The same would be arbitrary, dehors the rules and in conflict with Articles 14 and 16 of the Constitution. The only exception to the above would be where there is unreasonable delay which is unexplained.
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38.After coming of the 2009 Rules, fresh exercise was undertaken for preparation of seniority list. A tentative list was notified by the office order dated 29-12-2009. This office order mentions that the seniority list has to be prepared according to the 1991 Rules. While dealing with the finalisation of this tentative list, vide office order dated 5-3-2010, we find reference to https://www.mhc.tn.gov.in/judis 56/63 W.A No. 732 of 2022 disposal of an objection by Mahesh Chand Bagani and Mahesh Kumar in which they had apparently sought clarification regarding the requisition send to the Commission and other related aspects. In Para 11 of the office order, it is mentioned that the Commission had forwarded the three lists of the Agriculture, Mechanical and Civil streams separately on 6-1-2000, 27-1-2000 and 7-11-2000 respectively. It further mentioned that it was in that sequence i.e. the date of receiving that the combined seniority was assessed. Thus, again the seniority list was finalised in the same sequence as the three lists have been received and in that order. It is thereafter that the representations were made that the seniority list of the direct recruits of 2001 was wrongly prepared contrary to the Rules, however, when no action was taken, Rajiv Nain Upadhyay and fourteen others approached the High Court by way of WP No. 53123 of 2012 in October 2012 which was within a period of two to two- and-a-half years and till such time they had been pursuing their representation after office order dated 5-3-2010. From the above facts, it is clear that in the first contingency or in the second contingency, the appellants cannot be found at fault. The Division Bench committed an error in holding that the claim lodged by the appellant suffered from delay and laches.
39.The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay as they came to know of the three separate lists only in March 2010, even if it is assumed that there was some delay and a fresh seniority list was being prepared in 2009-2010 again contrary to the provisions of statutory rules, such seniority list cannot be sustained or defended on the ground of delay of five years.
40.It is also admitted by the parties that the next promotion of Junior Engineers in the higher grade is to the post of Assistant Engineer. In the cadre of Assistant Engineer, there are no separate streams but only one cadre of Assistant Engineers. It is the seniority list of the cadre of Junior Engineers which would be the feeder cadre for the post of Assistant Engineers. The Junior Engineers of Agricultural stream of the selection of the year 2001, would have direct march over the Junior Engineers selected in the same selection of the Mechanical and Civil streams, even though the overall merit of some or many of Agricultural stream Junior Engineers could be lower than some or many of the Engineers of the Mechanical and Civil streams. The appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission. Otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit. Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right.
https://www.mhc.tn.gov.in/judis 41.This Court, time and again, has laid emphasis on right to be 57/63 W.A No. 732 of 2022 considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty[Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 : 1991 SCC (L&S) 472] in para 4 of the report which is reproduced below : (SCC p.
299) “4. … There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.”
42.A Constitution Bench in Ajit Singh (2) v. State of Punjab [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239], laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27 : (SCC pp. 227-28) “Articles 14 and 16(1) : is right to be considered for promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that:
‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’.
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right.
“Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) https://www.mhc.tn.gov.in/judis 58/63 W.A No. 732 of 2022 ***
27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and followed in Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299] right from 1950.” (emphasis in original)
44.If the seniority list is allowed to be sustained then the Engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion wand in fact their right would accrue only after all the Junior Engineers of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go.”
23. The above judgment of the Apex Court makes it amply clear that ground of delay or laches cannot be sustained when a challenge is made to the seniority and when the seniority is fixed in contravention of the rules and when sufficient reasons are not given. In the present case, we have already held that all the 10000 candidates are part of same selection and that, as per Rule 24(d), seniority is to be fixed based on the final marks in the Training School. The earlier fixation of seniority was thus held to be bad due to violation of Rule 24(d). Insofar the reasons for delay, we have already noted in https://www.mhc.tn.gov.in/judis 59/63 W.A No. 732 of 2022 the preceding paragraphs that the application was filed with the authority concerned within three years. Once an application is filed in time, it is the duty of the official respondents to consider the same and pass orders. The laches on the part of the official respondents cannot be taken advantage of by the appellants. It would be further relevant to point out that as per Rule 4 of the Special Rules for the Tamil Nadu Police Subordinate Service, the appellate authority has the power to revise the list on his own motion within six months and Rule 8 of the TNSPSS Rules, the suo motu power can be exercised at any time and a period of 12 months (Six Months with a condonable period of six months) has been granted to any aggrieved member. Further, as per Rue 5 of the Special Rules and Rule 9 of the TNSPSS Rules, the State, dehors any other provisions in the Rules, cannot revise the list. There are no fetters for the State to exercise such power. Once, an anomaly is pointed out, it is the duty of the State and the official respondents to look into the matter and revise the list in conformity with the rules. Further, the reasons for the delay in approaching this court has been explained in paragraphs 7 to 10 of the affidavit filed along with the writ petition, which we find it sufficient and acceptable. In view of the same, the contentions of the Learned Senior Counsels for the appellants and the respondents 54 and 55 are rejected.
https://www.mhc.tn.gov.in/judis 60/63 W.A No. 732 of 2022 CONCLUSION
24. For the reasons stated above, the Writ Appeal is dismissed. However, considering the affidavit filed by the respondents/writ petitioner 1 to 50, the benefit of seniority already accorded as per the directions of the learned Judge will not culminate in payment of arrears, if not already paid. In other respects, the respondent authorities are directed to comply with the order of the learned Judge, within a period of 8 weeks from the date of receipt of a copy of this judgment. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
(R.M.D., J) (M.S.Q., J)
08.11.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking/Non-Speaking Order
To
1. Secretary to Government
State of Tamil Nadu
Home (Police-III) Department
Secretariat, Chennai - 9
2. Director General of Police
Dr. Radhakrishnan Salai
Chennai - 4
3. Additional Director General of Police
Armed Police, Lutens Garden
https://www.mhc.tn.gov.in/judis
61/63
W.A No. 732 of 2022
Kilpauk, Chennai - 10
https://www.mhc.tn.gov.in/judis
62/63