Madras High Court
The Principal Secretary To Government vs V.Ramachandran on 22 March, 2017
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.03.2017
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
REVIEW APPLICATION Nos.70 of 2015 to
79, 81, 82 and 90 to 92 of 2015
W.A.Nos.49 to 51, 635, 730 to 740,
774 to 784, 793 to 797, 800 to 830 and
849 to 851 of 2015
and Connected Miscellaneous Petitions
REVIEW APPLICATION No.70 of 2015
1. The Principal Secretary to Government,
State of Tamil Nadu,
Home Department, Chennai 600 009.
2. The Director General of Police,
Tamil Nadu, Chennai 600 004.
3. The Deputy Inspector General of Police,
Dindigul Range, Dindigul.
4. The Superintendent of Police,
Dindigul District, Dindigul. .... Petitioner
vs.
V.Ramachandran .... Respondent
Application filed under Order 47 Rule 1 of the Civil Procedure Code, to
review the order made in W.P(MD)No.348 of 2015, dated 23.04.2015.
!For Petitioners : Mr.K.Chellapandian,
Additional Advocate General
Assisted by Mr.Raja Karthikeyan
Mr.M.Alagadevan, Spl. Govt. Pleader
^For Respondents : Mr.S.C.Herold Singh (W.A.Nos.49 to 51/15)
Mr.S.Mahalingam (W.A.No.635 of 2015)
Mr.A.Rajaram
Mr.R.V.Rajkumar
Mr.K.Suresh Kumar
Mr.C.Venkatesh Kumar
for M/s.Ajmal Associates
:COMMON JUDGMENT
(Order of the Court was made by Mr.Justice S.MANIKUMAR) Writ Appeals in W.A. Nos.348 to 357 of 2015 were filed against the common order dated 28.11.2013 passed by a learned single Judge in W.P.No.15078 of 2010, etc. batch of cases.
2. The Review Applications in Review Application Nos.70 of 2015 etc. batch of cases have been filed by the State Government to review the common order dated 23.04.2015 passed by us in W.A. Nos.348 to 357 of 2015.
3. Police personnel, who were recruited as Police Constables Grade ? II, filed series of writ petitions before this Court claiming upgradation/promotion to the post of Special Sub Inspector of Police and for all attendant service and monetary benefits. W.P. (MD) No.15078 of 2010 etc. is one such batch of writ petitions. Learned single Judge allowed writ petitions by a common order dated 28.11.2013. Aggrieved, the State Government has filed the above writ appeals.
4. The Review Applications filed by the State Government arose out of the common order dated 23.04.2015 passed by us in W.A. (MD) No.346 of 2015 etc. batch of cases. The said writ appeals were filed by the State Government challenging the orders dated 26.11.2013 and 28.11.2013 passed by a learned single Judge in W.P. (MD) No.15213 of 2011, etc. batch of writ petitions. After hearing learned Special Government Pleader and the learned counsel for the respondents, we dismissed the appeals filed on the submission made that the issue involved is covered by the decision made in W.A. (MD) No.1506 of 2011 dated 17.06.2013 and that the appeals filed by the Government in W.A. (MD) No.236 and 237 of 2012 have been dismissed and so also the Review Applications filed by the Government in Review Application Nos.5 and 6 of 2015. It is against the said common order, the Government has filed the above review applications.
5. The learned single Judge, following the earlier judgment dated 17.06.2013 delivered by a Division Bench of this Court in W.A. (MD) No.1506 of 2011 etc. batch of cases,allowed the writ petitions, set aside the impugned orders and directed the respondents to apply the norms reiterated by this Court in the common judgment passed in W.A. (MD) No.1506 of 2011, in the light of the relevant Government Orders, and to give promotion as well as seniority to the petitioners.The learned single Judge was of the view that the writ petitioners are similarly placed like that of the respondents in W.A. (MD) No.1506 of 2011, etc. and therefore the writ petitioners are entitled for the similar reliefs.
6. After hearing the learned Special Government Pleader and the learned counsel for the respondents, we dismissed the writ appeals on the ground that the issue involved was covered by the earlier judgment dated 17.06.2013 delivered by a Division Bench of this Court in W.A. (MD) No.1506 of 2011 etc. batch of cases and on the basis of the statement made by the learned Special Government Pleader that similar appeals filed by the Government in W.A. (MD) No.236 and 237 of 2012 have been dismissed and that the review application filed were also dismissed.
7. The core issue involved in the review applications and the writ appeals relates to the claim made by the police constables for grant of upgradation/promotion to the post of Special Sub Inspector of Police and attendant service and monetary benefits. We therefore heard both the review applications and the writ appeals together and dispose of the same by this common order.
8. Learned Additional Advocate General appearing for the appellants vehemently contended that the writ petitions were erroneously allowed on a misplaced representation that the issue involved in the writ petition is covered by the earlier judgment of this Court delivered in W.A.(MD) No.1506 of 2011. He contended that the facts relating to the present writ petition are not similar to that of the facts relating to the earlier writ petitions. He also submitted that since the benefit of upgradation introduced vide G.O. No.1681 dated 12.10.1992 and came into effect from 20.02.1993, the same could not be implemented with retrospective effect to consider the claim of the writ petitioners who were enlisted in the year 1972 and completed the 10 years of service in 1982.
9. Learned Additional Advocate General contended that the Government Orders do not envisage any ?deemed upgradation? and that therefore the judgment delivered by the Division Bench is not in accordance with the Government Orders. It was submitted that the writ petitioners will be considered for upgradation to the next level of Special Sub Inspector only upon their completing 10 years of service in the rank of Head Constable.
10. Learned Additional Advocate General submitted that the implementation of the impugned order passed by the learned single Judge would lead to unjust promotion/upgradation to a large number of police personnel, some of them have in fact retired long back, which would in turn cause heavy expenditure to State Exchequer, administrative inconvenience and hardship due to realignment of promotion. He therefore pleaded that the impugned order passed by the learned single Judge may be set aside.
11. Learned counsel for the respondents, on the other hand, submitted that no sustainable ground has been made out by the Government for review of the order dated 23.04.2015 passed by this Court in the writ appeal. The issue involved in the writ petitions is similar to the one involved in W.A.(MD)No.1506 of 2011 etc. batch cases and therefore the writ petitioners, being similarly placed, are entitled for the same reliefs.
Heard the learned counsel appearing for the parties and perused the materials available on record.
12. The points for consideration in the present writ appeals and review applications are whether the writ-petitioners/respondents are entitled for the upgradation/promotion to the post of Special Sub Inspector of Police and attendant service and monetary benefits and whether the State Government has made any sustainable ground for review of our earlier common order dated 23.04.2015 passed in W.A. (MD) No.348 to 357 of 2015.
13. The writ-petitioners were recruited as Police Constables Grade II early in the year 1970s. While a few of them still in service, a majority of them were retired. The writ petitioners relying on certain Government Orders issued by the State Government made representations before the Superintendent of Police concerned for promotion to the post of Special Sub Inspector of Police with all attendant service and monetary benefits. Their claims were rejected. Challenging the same the writ petitioners filed writ petitions before this Court, which culminated in the present writ appeals and the review applications.
14. The hierarchy of Constabulary Cadre in the Tamil Nadu Police Service consists of Police Constable Grade ? II, Police Constable Grade ? I and Head Constable. It is in the above order that a Police Constable recruited in Rank ? II gets promoted as Grade ? I Constable and Head Constable.
15. To ameliorate the grievance of the Police Constables over their stagnation for more than 15 years in the cadre of Police Constable Grade ? I and Grade ? II and to provide career progression to the lower rank police personnel, the State Government introduced for the first time the scheme of ?upgradation? in the year 1992 by issuing G.O. No.1681 dated 12.10.1992.
16. The Government identified as many as 21000 Police Constables Grade II and 2700 Police Constables Grade I remained stagnated in the same rank for years together. In G.O. No.1681 dated 12.10.1992, the Government directed the upgradation of 21000 Police Constable Grade ? II posts as Police Constable Grade ? I posts in a phased manner for four years, commencing from 1992-1993 onwards.
17. The above Government Order was followed by a Government Order, G.O. No.844 dated 03.06.1997 which directed grant of upgradation to Police Constable Grade ? II who completed 10 years of service and continue in the same rank without any promotion as Police Constable Grade ? I and to upgrade the Police Constable Grade ? I who completed 15 years of service but not earned promotion as Head Constable. The qualifying service of ?15 years in Grade ? I? for upgradation as Head Constable was amended and reduced to ?5 years of service in Grade ? I? by Government Letter No.107160 dated 07.01.1998.
18. Head Constable is the feeder rank to the promotional cadre of Sub Inspector. To avoid undue delay in the Head Constables getting further promotion, the Government issued G.O. No.937 dated 21.07.1998 for promoting the Constables who completed the total service of 25 years of which 10 years of service in the rank of Head Constable as ?Special Sub Inspector of Police?. The qualifying ?25 years total service? was, however, relaxed in case of directly recruited Head Constables.
19. The Government thereafter issued another Government Order, G.O. No.15 dated 07.01.2010. This Government Order came to be issued to avoid the undue delay in grant of upgradation/promotions to the Police Constables by delegating power to grant upgradation/promotion to the Appointing Authorities, viz. Superintendent of Police and Commissioners of Police.
20. The writ petitioners, based on the above said Government Orders, particularly G.O. No.15 dated 07.01.2010, made representations to the Deputy Inspector General of Police and Superintendent of Police concerned, claiming deemed promotion to the ranks of Police Constable Grade I, Head Constable and Special Sub Inspector, with retrospective effect from the date of their initial entry into Police Service as Police Constable Grade - II and for grant of seniority and attendant monetary and other service benefits. The representations sent by the writ petitioners did not favour with the authorities concerned, who rejected the same on the reasoning that since the relevant Government Order would operate only prospectively and do not have retrospective effect and that the writ-petitioners were given upgradation/promotion to the next level rank at appropriate stage on their completing the ?qualifying service? in the particular rank as envisaged in the Governmetn Orders. This was challenged by the writ petitioners in the present writ petitions.
21. In the writ petitions, the claim of the writ petitioners was resisted by the Government on the ground that the intent and purport of the Government Order in granting upgradation/promotion to the next level of rank is to avoid stagnation of police personnel in lower ranks for want of vacancies in the next level rank, to avoid undue delay in promotion and to ensure career progression with monetary benefits. The said Government Order never intended to grant any ?deemed promotion/upgradation? or the Government Order to have the retrospective effect. The Government Order is clear and categorical in specifying the minimum qualifying service in the feeder rank to claim upgradation to the next level rank. It was also contended by the Government that the even if the length of service of the writ petitioners is taken into account from the date of their initial appointment, they have to satisfy the qualifying service in the feeder rank, as prescribed in the Government Order, to entitle for upgradation/promotion to the next level rank.
22. The writ petitioners claim that they should have been given the benefit of upgradation by taking into account their date of entry into the Police Service. According to them, the ?10 years qualifying service? in the rank of Police Constable Grade ? II should have been reckoned from the date of their initial entry into Police Service for their upgradation as Police Constable Grade ? I, further as Head Constable on completion of 5-year service in Grade I and as Special Sub Inspector on completion of 5-year service in Head Constable. In other words, the petitioners claim the retrospective effect of the Government Orders from the date of their initial appointment in the Police Service.
23. It is trite in law that Government Orders do not operate with retrospective effect unless it contains a provision to that effect. In the present case, all the Government Orders concerning the grant of upgradation to the Police Constables were not intended by the Government to have retrospective effect and, therefore, the said Government Order will have only prospective effect, i.e. from the date of issuance of the Government Orders. In the absence of any provision in the Government Orders to give effect to the said orders with retrospective effect, the Government Order will have only prospective application. There is catena of decisions of the Supreme Court and that of the High Courts to the effect that no Government Orders/Executive Instructions can have retrospective application unless there is a provision made therein.
24. We are of the considered view that particularly in a matter like this where the employees claim certain service and monetary benefitsunder Government Orders, the same could be extended only prospectively and not with retrospective effect. Giving the Government Orders in the present case the retrospective effect, as contended by the learned Special Government Pleader, and rightly so in our view, would cause serious administrative hardship and huge expenditure to the public exchequer. We, therefore, reject the claim of the writ petitioners that applying the Government Orders with retrospective effect to the date of their initial entry into the Police Service, they are entitled for upgradation much earlier and therefore entitled for the attendant service and monetary benefits.
25. It is found from the materials placed on record by the learned Special Government Pleader that all the writ petitioners were given the benefit of upgradation to the next level of promotion by taking into account their completion of the qualifying service in each level of rank as prescribed in the above Government Orders. The petitioners? claim for deemed promotion to the rank of Police Constable Grade ? I by reckoning their qualifying service of 10 years in the rank of Grade ? II from the date of their initial appointment in service, further upgradation to the rank of Head Constable on completing the qualifying service of 5 years in Grade ? I and to the post of Special Sub Inspector of Police by applying the G.O. No.15 with retrospective effect is unsustainable as the said Government Orders would operate only prospectively with effect from 07.01.2010.The petitioners could not claim promotion to the post of Special Sub Inspector since they did not have the qualifying service of 10 years in the rank of Head Constable though they have the 25 years of total service. It is also to be noted that the benefit of upgradation to the post of Special Sub Inspector was introduced in the year 1998 only by G.O. No.937 dated 21.07.1998 and this Government Order will have its effect prospectively with effect from 21.07.1998 onwards. Further, the reliance placed on by the petitioners on G.O. No.15 dated 07.01.2010 to have the retrospective effect is also incorrect as the said Government Order was issued only for the purpose of delegating the powers to the Superintendents of Police/Deputy Inspectors General of Police/Commissioners of Police to grant upgradationfor eligible police personnel.
26. Learned counsel for the writ-petitioners, placing heavy reliance on the judgment dated 17.08.2013 rendered by a Division Bench of this Court in W.A. (MD) Nos.1506 of 2011, etc. batch of cases, contended that the writ- petitioners, who are similarly placed persons like that of the respondents in the above writ appeal, are entitled for the relief prayed in the writ petitions. Learned counsel for the writ petitioners submitted that the Division Bench categorically held that the actual service of 5 years in the rank of Head Constables is not required for giving upgradation as Special Sub Inspector of Police as they have been deemed to be promoted to the ranks viz. Police Constable Grade ? I and to Head Constable on completing the qualified service from the date of their initial appointment in Grade II Police Constable, provided they have completed 25 years of total service.
27. We have gone through the judgment of the Division Bench. The Division Bench after referring to the relevant part of G.O. No.15 dated 07.01.2010, in paragraph 4 held as follows:
?4. From the above Government Orders it is evident that actual service of five as Head Constable is not required for giving upgradation as Special Sub Inspector of Police as they have been deemed to be promoted for the respective cadre of Head Constable on completion of five years as Grade ? I PC (deemed upgradataion) and ten years of service as Head Constable from the date of deemed upgradation as Head Constable, provided 25 years of total service is available. The said Government Orders were also extended to several persons similarly placed and batch of cases were allowed by applying the said Government Orders. The only contention raised by the learned Special Government Pleader in these writ appeals are even if the seniority of the police constable should be counted from the date of appointment, irrespective of the transfer to the other Wing or District, one has to complete five years of service as Head Constable for getting promotion as Special Sub Inspector of Police. The Government Order nowhere states that actual five years in the cadre of Head Constable is mandatory.?
The Division Bench held that to claim upgradation/promotion to the post of Special Sub Inspector all that is required to be fulfilled by a Police Constable is to have 25 years of service from the date of his initial appointment and that the qualifying service of five years as Head Constable is not required for giving upgradation as Special Sub Inspector of Police. We respectfully disagree with the decision of the Division Bench. The Government Orders, viz. G.O. No.1681 dated 12.10.1992, G.O. No.844 dated 03.06.1997, G.O. No.937 dated 21.07.1998 and G.O. No.15 dated 07.01.2011 are plain and crystal clear on the scheme of grant of upgradation/promotion to the Police Constables. The Government Orders, in the first instance, will have prospective effect only, i.e. from the date of their issuance.The said Government Orders also prescribed a specific period of ?qualifying service? in a particular rank to gain the benefit of upgradation/promotion to the next level. Under the said Government Orders, a Grade-II Police Constable on completion of 10 years of service in the rank of Grade II and who has not been promoted to Grade-I Police Constable for want of vacancies is eligible to claim upgradation to Police Constable Grade-I. A Police Constable Grade-I on completion of his 5-year service in Grade-I is eligible to claim upgradationas Head Constable. A Police Constable who has completed 25 years of service, out of which 10 years of service as Head Constable, and not able to get regular promotion of Sub Inspector of Police, is eligible to claim upgradation as Special Sub Inspector of Police. When the Government Order is specific in prescribing 10 years of service in the rank of Head Constable out of 25 years of service, without fulfilling the condition of 10 years of service in the rank of Head Constable, a Police Constable could not claim upgradation as Special Sub Inspector of Police. The Government Orders, in our considered view, do not envisage ?deemed upgradation?.
28. Learned Additional Advocate General, inviting our attention to a Division Bench judgment of this Court in The Director of Sericulture Department, Salem and others v. K. Kumar and others (2015 (4) CTC 241) contended that in the facts and circumstances of the case, this Division Bench may not follow the judgment of the earlier Division Bench. He argued that the benefit of upgradation to the post of Special Sub Inspector of Police with retrospective effect and the attendant service and monetary benefits are not legitimately due to the writ petitioners. He also submitted that the petitioners in the present writ petitions are not similarly placed persons. The judgment of the Division Bench is contrary to the object and purport of the Government Orders and compliance of the Division Bench judgment would cause the heavy expenditure to the public exchequer and hardship to the administration due to realignment of promotion.
29. In The Director of Sericulture Department, Salem v. Kumar, cited supra, the writ petitions filed by the community of drivers employed in various Government Departments claiming higher monetary benefits were allowed by this Court. The order attained finality as the appeal filed was dismissed. This was followed in batch of writ petitions granting higher monetary benefits to drivers on the ground that the issue is already covered by a decision of this Court. One batch of writ petitions was, however, dismissed by the learned single Judge holding that the Government Order in question was wrongly construed and the earliest decision of this Court was wrongly interpreted. When the matter came up for consideration before the Division Bench, the Division Bench, after analyzing the facts in threadbare, dismissed the writ petitions filed by the drivers and allowed the writ appeals filed by the Government. Three contentions were raised before the Division Bench. The first contention raised was that when hundreds of Drivers have approached this Court, obtained Orders in their favour and those Orders have also been implemented, it is not open to the Government to refuse to extend the same benefit to the remaining employees. Rejecting the contention,the Division Bench held as follows:
?21. But we are at a loss to understand as to how the above principles could be applied to the cases on hand. All the aforesaid principles could be applied only to cases, where the employees are legitimately entitled to some benefit but it was denied to them either wrongly or on a wrong application/interpretation of the Rules/Circulars. The principles laid down in Aravind Kumar Shrivastava could not be invoked in cases where one set of employees get through Court Orders, a benefit that is not legitimately due to them. The principles laid down in the aforesaid decision could be invoked only in two types of cases namely (1) cases of wrongful denial of a rightful benefit, or (2) cases of wrongful denial of a doubtful benefit. They cannot be applied to a rightful denial of a benefit, which is not due to them.?
The second contention raised was that when several Benches of this Court both Single and Division, have passed orders in a particular manner, it is not open to the respondents (Government) to again and again re-agitate the same issue in every Writ Petition. The Division Bench rejected this contention also by holding as follows:
?32. But in the case on hand, the question as to whether the Drivers are entitled to a particular Selection Grade Scale of Pay and a particular Special Grade Scale of Pay is not a pure question of law. It is a question of fact, to be culled out from the Sechedules to the Tamil Nadu Revised Scales of Pay Rules, 1989 and 1998. Moreover, the earliest decision of this Court only based upon which hundreds of Writ Petitions were subsequently allowed, never discussed or laid down any factual finding that the Drivers were entitled to a particular Scale of Pay in the Selection Grade or Special Grade. Hence, the decision in Om PrakashAsati is of no application.
33. The second decision in Sandhya Educational Society is of no relevance. The said decision dealt with the question relating to the maintainability of a Review Application before the High Court, especially after dismissal of the Special Leave Petition. While dealing with the said question, the Supreme Court pointed out in Para 9 that judicial decorum and discipline is paramount and that a coordinate Bench has to respect the Judgments and Orders passed by another Bench.
34. It is true that consistency helps the parties to a litigation to know where they stand. But, when it is brought to the notice of the Court that on most of the earlier occasions, several similarly placed employees obtained Orders at the stage of admission, on the ground that the issue is already covered by a decision of this Court and that it was only in this manner that several employees got a benefit that was not legitimately due to them, the Court cannot shut its eyes and choose to prefer maintenance of discipline rather than upholding public interest.
35. As a matter of fact, the greatness of the Court lies only in its courage and ability to correct its mistakes. Justice is more precious than discipline. This was the principle that the Supreme Court highlighted in A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531. It was observed that in the said decision that ?in rectifying an error, no personal inhibitions should debar the Court because no person should suffer due to the mistake of the Court.
Therefore, this Court should not feel shackled either by the rules of procedure or by the principles of propriety, when it is so glaring that a gross injustice has been done to the State (1) by Writ Petitions getting allowed at the stage of admission, and (2) by getting those Orders implemented under threat of contempt. This is especially so when the earliest decision that was followed in all other cases, did not decide the Scale of Pay to be granted for Selection and Special Grades. Hence, the Second Contention of the Writ Petitioners is also liable to be rejected.?
The third contention that in view of the settled position that what was done by the Court cannot be treated as an illegality was also rejected by the Division Bench. The Division Bench in paragraph 40 of the judgment held as follows:
?40. In this case, we have gone through the Government Orders many times, to find out what Scale of Pay the Drivers are entitled to, in the Selection and Special Grades. We are unable to find, however lenient our approach is, that the Writ Petitioners could legitimately lay a claim for a Selection Grade Scale of Rs.5,000-8000 and Special Grade Scale of Pay of Rs.5500-9000. Therefore, what they have claimed and got in most of the previous decisions of this Court is not what they are lawfully entitled to. Once this is clear, it would follow as a natural consequence that the Writ Petitioners herein want only that illegality to be perpetrated. An illegality will not undergo a metamorphosis and become legal, merely because it received the seal of approval of a Court of law. Therefore, the Third Contention is also liable to be rejected.?
30. The above Division Bench judgment squarely applies to the facts and circumstances of the present case. Here also, the writ petitioners claim that when a batch of police constables have already reaped the benefit of upgradation and attendant service and monetary benefits, through the orders of this Court, the Government cannot deny the same benefit to them. We have already held that the since the Government Orders in question cannot have retrospective effect and that the writ petitioners cannot claim that the benefit of ?deemed promotion?by reckoning the date of their initial entry into Police Service to claim the promotion to the post of Special Sub Inspector of Police much earlier.
31. In the facts and circumstances of the present case in the light of the Government Orders operating the field and materials placed before us by the learned Special Government Pleader, we are of the categorical view that the writ petitioners cannot claim ?deemed promotion? to the post of Special Sub Inspector of Police and the attendant service and monetary benefits. We, therefore, left with no other option but to respectfully disagree with the decision rendered by the earlier Division Bench of this Court in similar batch of writ petitions.
32. We wish to point out that we passed the common order dated 23.04.2015 in W.A. (MD) No.348 to 357 of 2015 batch of cases on the submission made by the learned counsel that the issue involved is covered by the earlier Division Bench decision dated 17.06.2013 made in W.A. (MD) No.1506 of 2011. The niceties of the legal issues and the real import and purport of the Government Orders were omitted to be brought to our notice. We reiterate that it was only on the ground and in this manner that several Police Constables, most them retired from service long back, reaped monetary benefits that was not legitimately due to them under the Government Orders concerned. In such circumstances, we cannot blindfold ourselves by the earlier Division Bench decision to allow the claim of the present writ petitioners. We are thoroughly convinced in the facts and circumstances of the case that the Government has made out sustainable grounds for reviewing our earlier common order dated 23.04.2015 in W.A. (MD) No.348 to 357 of 2015.
In the result, while set aside the common order, dated 28.11.2013 passed by the learned single Judge in W.P. (MD) No.15078 of 2010, etc. batch of writ petitions, we allow all the Review Applications and the Writ Appeals filed by the Government. There will be no order as to costs. Consequently, connected Miscellaneous Petitions are also closed.
.