Madras High Court
G.Jayakumar vs The State Of Tamilnadu on 31 January, 2017
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.01.2017
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD) No.7749 of 2010
and
M.P.(MD).No.2 of 2010
G.Jayakumar ... Petitioner
Vs.
1.The State of Tamilnadu,
rep. by its Secretary to Government,
Home Department,
Secretariat,
Chennai- 600 002.
2.The Director General of Police,
Mylapore,
Chennai-600 004.
3.The Superintendent of Police,
Virudhunagar District,
Virudhunagar.
4.The Superintendent of Police,
Tirunelveli District,
Tirunelveli. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of Writ of Certiorarified Mandamus, to call for the records on
the file of the 3rd respondent in connection with the impugned order passed
by him in his proceedings in C.No.A(3)/4821/206/2005, DO.906/2005, dated
21.06.2005 and consequential up-gradation order passed by the 4th respondent
in his proceedings in DO/499/2007, C.No.A2/851/05, dated 14.05.2007 and quash
both the impugned orders as illegal and arbitrary and consequently give
effect to the accelerated promotion given to the petitioner as Head Constable
with effect from 29.10.2004 based on G.O.(Ms).No.1252 Home (Pol.VII)
Department, dated 29.10.2004 issued by the 1st respondent and pay all back
wages and monetary benefits within the time limit that may be stipulated by
this Court.
!For Petitioner : Mr.G.Thalaimutharasu
^For Respondents : Mr.V.Muruganantham
Government Advocate
:ORDER
The prayer in the writ petition is for a writ of certiorarified mandamus to call for the records on the file of the third respondent in connection with the impugned order, by his proceedings in C.No.A(3)/4821/206/2005, DO.906/2005, dated 21.06.2005 and consequential up- gradation order passed by the fourth respondent in his proceedings in DO/499/2007, C.No.A2/851/05, dated 14.05.2007 and quash both the impugned orders and consequentially give effect to the accelerated promotion given to the petitioner as Head Constable with effect from 29.10.2004 based on G.O.Ms.No.1252 Home(Pol.VIII) Department, dated 29.10.2004, issued by the first respondent and pay all back wages and monetary benefits to the petitioner within a time limit to be stipulated by this Court.
2. The case of the petitioner is that the petitioner was enlisted as Grade-II Police Constable on 16.03.1994 and subsequently he was working as Grade-I Police Constable inspite of his promotion as Head Constable. On three occasions he was imposed with a minor punishment under Rule 3(a) of the Tamil Nadu Police Subordinate Service Rules, 1955, with the result stoppage of increment for one year was effected and he had undergone all the punishments, which were over by 28.04.2002. Since the petitioner had completed 10 years of service as Grade-II Police Constable by 2004, he was promoted as Grade-I Constable. During that time, he was entrusted with the duty of Special Task Force to nab the forest brigant Veerappan and in recognition of the courageous and heroic act, wherein the petitioner was a member, the Government took a policy decision to give an accelerated promotion of one stage to all those members in the Special Task Force.
3. Pursuant to the said policy decision of the Government, the first respondent issued a Government Order in G.O.Ms.No.1252 Home (Pol.VIII) Department, dated 29.10.2004, whereby one stage of accelerated promotion was given to everyone, who were part of the said Special Task Force and accordingly, the petitioner was promoted from Grade-I Police Constable to Head Constable. Pursuant to the said Government Order, the first respondent had issued a proceedings in R.C.No.220474/NGB-VII(2)/2004), dated 29.10.2004, for the order of promotion to the petitioner to the post of Head Constable. While so, the third respondent through the proceedings, dated 29.01.2005 relieved and transferred the petitioner as Head Constable to Tirunelveli District. While he was discharging the duty to the entire satisfaction of his superiors, suddenly to his shock and surprise, the petitioner had been served with an order, dated 21.06.2005, whereby he was relieved, only as Grade-II Police Constable, instead of Head Constable. The said order of the third respondent, dated 21.06.2005 and the consequential order of treating the petitioner only as Grade-II Police Constable, instead of Head Constable, to the post to which he was already promoted, by way of accelerated promotion, is under challenge in this writ petition with the above said prayer.
4.Heard the learned counsel for both sides.
5. The issue raised by the writ petitioner in the present writ petition is in a very narrow campus, as to whether he was actually promoted from the post of Grade-I Police Constable to the post of Head Constable, by way of accelerated promotion, for being the member of the Special Task Force to nab the forest brigant Veerapan, pursuant to the policy decision, which is reflected in the Government Order in G.O.Ms.No.1252, dated 29.10.2004.
6. The learned counsel for the petitioner submits that clear orders were passed, pursuant to the policy decision as reflected in the Government Order cited supra, by the Head of the Department on 29.10.2004, whereby a specific order has been passed stating that as per the Government Order, the petitioner that is Grade-I Police Constable 2340 was promoted as Head Constable with effect from 30.10.2004 and posted as Head Constable, Special Task Force, Erode and pursuant to which the District Police Office, Virudhunagar in the year 2005 by the proceedings, dated 29.01.2005 had given transfer orders to number of Head Constables including the petitioner and in the said proceedings of the third respondent, the petitioner's name is found at Serial No.3 as Head Constable 2340 and he has been posted at Tirunelveli District. When these two proceedings had been issued and the petitioner was working as Head Constable, suddenly by the impugned order, dated 21.06.2005, the third respondent has directed to relieve the petitioner only as Grade-II Police Constable immediately and to report at District Police Office, Tirunelveli. The reasons adduced by the third respondent, in the order impugned, are infact superfluous than the policy decision taken by the State Government, which is reflected in the Government Order cited supra and also the subsequent proceedings issued by the Head of the Department, i.e., Director General of Police, Chennai-4 by his proceedings, dated 29.10.2004. When the Government took the policy decision and the same was implemented by the Head of the Department, the third respondent being a District level Officer would pass a different order completely opposing the import and the merits of the Government Order as well as the orders of the Head of the Department. Therefore, challenging the same, the petitioner has come out with this writ petition and therefore the learned counsel for the petitioner would submit that absolutely there is no plausible reason to pass such an order against the petitioner and before passing such an order, which in fact is an reversion or demotion in effect, no notice was served on the petitioner and therefore on that ground also by invoking the principle of natural justice, the impugned order is liable to be quashed.
7. Per contra, the learned Additional Government Pleader made his submissions by relying upon the averments made in the counter affidavit especially at para No.8 which reads as follows:
?8. Regarding the averments made in paragraphs 5 and 6, of the affidavit para 5 and 6 its submitted that orders issued by the Director General of Police in RC.No.220424/NGB(2)/2010, dated 29.10.2004 in line of orders issued by the Govt. in G.O.Ms.1252 Home (Pol.VIII) Department, dated 29.10.2004 promoting the writ petitioner as HC could not be implemented since he was not serving as Gr.I. Police Constable in Special Task Force that too he was serving as Gr.II Police Constable in Armed Reserve, Virudhunagar District. Accordingly, the facts for not implemented the promotion orders was already informed to Director General of Police, Chennai in C.No.A1(3)/4821/206/2005, dated 21.06.2005 and accordingly he was relieved on transferred to Tirunelveli District as Gr.II Police Constable as per D.O.906/2005, dated 21.06.2005 of Superintendent of Police, Virudhunagar.?
8. The learned Additional Government Pleader would also rely upon the proceedings of the third respondent dated 16.08.2012, whereby the following has been given;
?Advancement of Upgradation as Gr.I PC & Upgradation as HC Gr.I PC 2340 G.Jeyakumar of Radhapuram PS was enlisted as Gr.II PC on 16.03.1994 and upgraded as Gr.I PC on 28.10.2005. As per Govt. Letter No.769/Home (Pol.)Dept. 28.07.2010, the date of upgradation of the above said Gr.I PC 2340 G.Jeyakumar in the ranks of Gr.I PC is advanced to 16.03.2005 (after completion of punishment period in PR.No.106/2000, u/r3(a)), subject to the condition that this effect is only for consideration of the next upgradation of the individuals and should not claim any financial benefits.
2) He has to be upgraded as Head Constable w.e.f. 16.03.2010. In the meantime he was awarded a punishment of reduction in time scale of pay by two stages for two years without cumulative effect by the Supdt. Of Police, Tirunelvlei District dt.12,06.2008. The punishment period completed on 24.09.2010 and repromotion was also granted on 25.09.2010. As per the instructions issued in G.O.Ms.No.15Home(Pol. V) Dept., dt.07.01.2010 communicated in Chief Office memo in RC.No.03272/NGB IV(2)/2009, dated 13.01.2010, the five years service period in the rank of Gr.I PC has been completed on 26.10.2010.
3) In this connection Chief Office have issued instructions in Chief Office memo 251012/NGB III(2)/05, dated 12.08.2005 for the punishment cases as follows.
?In cases of currency of punishment on the date of sanctioning of upgradation, upgradation shall be given after one year from such date, or the next day of completion of period of punishment whichever is later?.
4) As per Chief Office instructions, his upgradation is ordered as given below.
A Eligible Date of upgradation as HC
-
16.03.2010 B Upgradation to the rank of HC ordered
-
01.04.2011 (i.e. 1 year from the eligible date of upgradation)
5) The period of probation will be commenced from the actual date of officiation as HC. The arrears of pay and allowances if any eligible, will be drawn and paid him separately. His date of officiation is 16.08.2012 F.N.?
9.Though an order was passed by the second respondent on 29.10.2004 to give promotion to the petitioner from the post of Grade-I Police Constable to Head Constable, which was issued in a routine manner, pursuant to the policy decision taken by the Government as reflected in G.O.Ms.No.1252, dated 29.10.2004, by way of accelerated promotion, the petitioner was not at all entitled to get such a promotion for the reasons that the petitioner had never acted as Grade-I Police Constable and he was not given any such promotion. Even at the time of passing the order by the Head of the Department, that is the second respondent, in the order, dated 29.10.2004 and even subsequently, the petitioner was acting only as Grade-II Police Constable. Even in the year 2008, the petitioner had been inflicted with the punishment and the currency of the said punishment was there till 24.09.2010. So, whenever the currency of punishment is there and only after completion of such punishment undergone by the employee, he would be eligible for consideration of promotion.
10. Eventhough the policy decision of giving accelerated promotion to all the members of the Special Task Force was taken by the Government the same could not be implemented for persons like the petitioner, as the petitioner had never been considered to be promoted as even Grade-I Police Constable, either at the time of giving such accelerated promotion to the entire team of the Special Task Force or even thereafter. Therefore, the learned Additional Government Pleader would submit that the impugned order itself is a self-explanatory one and a wrong promotion directed to be given to the petitioner was requested to be reviewd and in this regard, the Government has also reviewed the matter and subsequently the petitioner was given promotion as Head Constable in the said proceedings, dated 16.08.2012 and accordingly, he has been acting upon only from that date. Therefore, there is absolutely no infirmity in the impugned order, which is under challenge in this writ petition. Therefore, the learned Additional Government Pleader submits that this writ petition deserves to be dismissed.
11. This Court has considered the said rival submissions as well as the proceedings issued by the respondents, which were produced before this Court for perusal.
12. No doubt the accelerated promotion was directed to be given to each member of the Special Task Force for their commendable action to nab the forest brigant Veerapan. That policy decision is reflecting in the Government Order cited supra. Only pursuant to the said policy decision as well as the Government Order, the second respondent has directed to give promotion to everyone of the members of the Special Task Force including the petitioner and that is the reason why, the order directing to give promotion to the petitioner, as Head Constable, was passed by the second respondent on 29.10.2004. The policy decision to give one stage promotion by way of accelerated promotion, has to be implemented only for those, who are already working in a particular stage, without undergoing any currency of punishment. Now here in this case, admittedly, the petitioner was not working as Grade-I Police Constable. In other words, he was not at all given first promotion from Grade-II, to Grade-I Police Constable, because of the punishment inflicted on him, which he has undergone. When he was not working as Grade-I Police Constable, the question of giving further promotion, even by way of accelerated promotion, as directed by the Government cannot be granted to the petitioner and this position was not brought to the notice of the Head of the Department at the time of passing the order, dated 29.10.2004. That is the reason why the order to that effect was passed by the second respondent. Subsequently, when the same was noticed, the third respondent, who is the immediate superior officer of the petitioner's Department in the District concerned, has issued the present impugned proceedings on 21.06.2005. In the said impugned proceedings, the third respondent has stated the reasons as to why such promotion to the post of Head Constable to the petitioner cannot be granted. Pursuant to the said order, dated 21.06.2005, consequential proceedings by way of giving up-gradation as Grade-I Police Constable to the petitioner was also given on 14.05.2007. The petitioner has come up with this writ petition challenging both orders only after getting consequential order, dated 14.05.2007 and has not challenged the original order, dated 21.06.2005, wherein for the first time he was inflicted with an order treating him only as Grade-II Police Constable and he was directed to be relieved. Having accepted the said order, dated 21.06.2005 and had worked for some time as Grade-II Police Constable, only after the order, dated 14.05.2007, that too after three years, the petitioner has come out with this present writ petition only in the year 2010. In the meanwhile, he has been inflicted with further punishment by the proceedings of the third respondent, dated 12.06.2008 and the petitioner also, having accepted the punishment, has undergone the same. In view of these series of punishments undergone by the petitioner, his eligible date of up-gradation as Head Constable falls only on 16.03.2010 and in view of the currency of punishment on the date of sanctioning of up-gradation, it shall be given after completion of one year period.
13. Considering the said one year period, he would become eligible to get up-gradation only on 01.04.2011 onwards and the same was rightly given to him. All these proceedings had been issued against the petitioner and these factors are not in dispute. When the learned counsel for the petitioner was specifically requested to produce the order, promoting the petitioner to the post of Grade-I Police Constable from Grade-II Police Constable either prior to the proceedings, dated 24.10.2004 or even after that, he was not able to produce any such order. These factors would go to show that the petitioner, even at the time of getting order from the second respondent to get the accelerated promotion, that is, on 29.10.2004, was not at all working as Grade-I Constable and he had never been considered for promotion to that post at that time, that is, before the actual date of giving accelerated promotion to all the team members including the petitioner. Therefore, the import of the policy decision to give accelerated promotion to every member of the team cannot be uniformly implemented, in view of the specific punishment inflicted to the petitioner which he has undergone. Even after such accelerated promotion given by the Government, subsequent punishment has been inflicted on the petitioner in the year 2008, which he had undergone up to the year 2010, hence he was not considered for further promotion for the post of Head Constable and therefore he was given promotion as Grade-I Constable only, from 28.10.2005 and subsequently as Head Constable only from 01.04.2011. These dates are very relevant in so far as the claim made by the petitioner is concerned and on perusal of all these proceedings, this Court is of the firm view that there is no infirmity in the impugned order denying such promotion even by way of accelerated promotion to the petitioner from the post of Grade-I Police Constable to the post of Head Constable, as at that time he was not at all eligible and entitled to claim the same. In that view of the matter, this Court finds no infirmity in the impugned order and therefore this writ petition fails. Hence, it is liable to be dismissed and accordingly, this writ petition is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.
To
1.The Secretary to Government, Home Department, Secretariat, Chennai- 600 002.
2.The Director General of Police, Mylapore, Chennai-600 004.
3.The Superintendent of Police, Virudhunagar District, Virudhunagar.
4.The Superintendent of Police, Tirunelveli District, Tirunelveli..