Madras High Court
A. Mohamed Nazar vs Http://Www.Judis.Nic.In on 8 January, 2020
Author: R. Subbiah
Bench: R.Subbiah, C. Saravanan
wp 16280 of 2005
THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on : 31.07.2019
Order Pronounced on : 08-01-2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR. JUSTICE C. SARAVANAN
Writ Petition No. 16280 of 2005
Writ Petition No. 25263 of 2009
Writ Petition No. 12027 of 2013
Writ Petition Nos. 1404, 1584, 3013, 3048, 3893, 15277,
17082, 21810, 33544 and 34373 of 2018
Writ Appeal No. 484 of 2018
---
WP No. 16280 of 2005
1. A. Mohamed Nazar
2. S. John Victor
3. E. Kanagaraj
4. M. Royappan Yesunesan
5. V. Sampath
6. K. Senthil Murugan
7. V. Pajany
8. V. Tamilvanan
9. V. Rajapandi
10. R. Aldrin
11. R. Mohan
12. K. Pasupathy
13. S. Surendran
14. R. Raja Robert
15. S.S. Mani
16. D. Gowthaman
17. P. Athilingam Bose
18. I. Rajapal
19. S. Senthil
20. R. Frank D. Ruban .. Petitioners
Versus
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1. Government of Tamil Nadu
represented by Secretary to Government
Home Department
Fort St. George
Chennai - 600 009
2. The Director General of Police
Tamil Nadu
Chennai - 600 004
3. S.M. Mahalingam
Sub-Inspector of Police
Vilampatty Police Station
Dindigul District
4. P. Jagadeesan
Sub Inspector of Police
Erode North Police Station
Erode District .. Respondents
WP No. 16280 of 2005 - Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Mandamus directing the
respondents to prepare a seniority list of all the Sub Inspectors of Police directly
recruited for the year 1994-1995 selected from the open market only in the order of
their rank obtained in Tamil Nadu Uniformed Services Recruitment Board Selection
and to include the names of the petitioners herein in the 'C' List of Sub Inspectors
of Police for consideration for promotion to the post of Inspectors of Police pursuant
to the proceedings of the second respondent issued in C.No.122334/NGB.I
(1)/2004 dated 08.06.2004 as modified by the proceedings dated 17.11.2004 or in
any other proceedings or "C" List for promotion as Inspectors of Police and to
subsequently draw a separate seniority list for the inservice graduates selected
against 20% of the direct recruitment quota and appointed as Sub Inspectors of
Police during the year 1997 and on any account to place them only below the
petitioners herein irrespective of the dates of appointment as Sub Inspectors of
Police.
WP No. 25263 of 2009 - Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records of the first respondent in G.O. Ms. No.1054, Home (Pol.III) Department
dated 13.07.1995 and G.O.s (2D) Nos. 30 and 31 of Home (Pol.III) Department
dated 27.01.2009 and quashing G.O. Ms. No.1054, Home (Pol.III) Department
dated 13.07.1995 in so far as it relates to Special Rules for Tamil Nadu Police
Subordinate Services and G.O.s (2D) Nos. 30 and 31 of Home (Pol.III) Department
dated 27.01.2009 and directing the respondents 1 to 3 to fix the seniority of the
petitioners in the cadre of Sub-Inspectors of Police on the basis of the marks
obtained by them in the final examination in the police training college.
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WP No. 12027 of 2013- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records relating to the impugned order passed by the first respondent herein in
his proceedings G.O. Ms. No.461, Home (Police VI) Department dated 10.06.2019
and quash the same in so far as fixation of seniority of 20% departmental quota in
proviso to rule 25 of Special Rules for Tamil Nadu Police Subordinate Service and
consequently direct the first respondent herein to modify the date of effect of
amendment in rule w.e.f. 13.07.1995 instead of 19.05.2008 as already done in G.O.
Ms. No.627, Home, Police III Department dated 24.10.1996 within a time frame as
deem fit.
WP No. 1404 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ Mandamus directing the respondents 1
and 2 to implement the orders passed in G.O. Ms. No.868, Home (Police-VI)
Department dated 21.11.2017 with regard to the seniority of the petitioners in
accordance with the amendment made to Rule 25 (a) of The Special Rules for
Tamil Nadu Police Subordinate Services, 1955 and grant all consequential service
benefits, including promotions, fixation of seniority etc., to the petitioners within a
time frame as may be fixed by this Court.
WP No. 1584 of 2018- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Mandamus directing the respondents
to implement the G.O. Ms. No.868, Home (Police-VI) Department dated 21.11.2017
and consequently grant promotion to the petitioners herein to the post of Deputy
Superintendent of Police and grant all other eligible benefits as applicable.
WP No. 3013 of 2018 :- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records on the file of the first respondent, pertaining to the amendment to Rule
25 (a) of the Special Rules for Tamil Nadu Police Subordinate Services, 1955,
issued vide G.O. Ms.No.868, Home (Police-VI) Department dated 21.11.2017 and
quash the same and direct the respondents herein to desist from including any
person appointed as Sub Inspector of Police without the support of statutory Rules
in the panel of Inspector eligible for promotion to the post of Deputy Superintendent
of Police nor to promote any of them prior to the empanelment and promotion of
the petitioner herein as Deputy Superintendent of Police.
WP No. 3048 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records on the file of the first respondent, pertaining to the amendment to Rule
25 (a) of the Special Rules for Tamil Nadu Police Subordinate Services, 1955,
issued vide G.O. Ms.No.868, Home (Police-VI) Department dated 21.11.2017 and
quash the same and direct the respondents herein to desist from including any
person appointed as Sub Inspector of Police without the support of statutory Rules
in the panel of Inspector eligible for promotion to the post of Deputy Superintendent
of Police nor to promote any of them prior to the empanelment and promotion of
the petitioner herein as Deputy Superintendent of Police.
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WP No. 3893 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records on the file of the first respondent, pertaining to the amendment to Rule
25 (a) of the Special Rules for Tamil Nadu Police Subordinate Services, 1955
issued vide G.O. Ms.No.868, Home (Police-VI) Department dated 21.11.2017 and
quash the same and to issue consequential direction to the respondents herein to
desist from including any Inspector of Police, who was initially appointed as Sub-
Inspector of Police under 20% direct recruitment quota from among in-service
candidates, over and above the Inspector of Police who were directly recruited Sub
Inspectors of Police for the year 1994-1995 in the panel for promotion to the post of
Deputy Superintendent of Police for the year 2007-2018 nor to promote any one of
them prior to the empanelment and promotion of the petitioners herein as Deputy
Superintendent of Police.
WP No. 15277 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Mandamus directing the respondents
to implement the G.O. Ms. No.868, Home (Police-VI) Department dated 21.11.2017
and to grant promotion to the petitioner herein to the post of Deputy Superintendent
of Police with all consequential service and monetary benefits.
WP No. 17082 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records from the first respondent, quash G.O. Ms. No.868, Home (Police VI)
Department dated 21.11.2017 amending Rule 25 (a) of the Special Rules for Tamil
Nadu Police Subordinate Services, 1955 by inserting a new proviso after the V
proviso retrospectively from 13.07.1995, as illegal, arbitrary and contrary to law and
consequently direct the respondents to draw the seniority list in the post of Sub-
Inspector of Police category I by taking into account of the marks secured by the
individual candidates in the training and in accordance with law.
WP No. 21810 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for
the records on the file of the first respondent in G.O. Ms. No.1006, Home (Police-
VI) Department dated 16.08.2018 communicated vide the proceedings of
Endorsement of the second respondent issued in R.C. No.155666/GB 2 (1)/2017
dated 18.08.2018 and quash the same to the limited extent of inclusion of the
names of the respondents Nos. 3 to 11 and the non-inclusion of the petitioners 1 to
3 therein and for consequential direction to the first respondent to include the
names of the petitioners 1 to 3 in the appropriate place in the aforesaid
proceedings of the first respondent dated 16.08.2018 with consequential benefits
and to desist from empanelling and appointing in any manner, any in-service
graduate candidate as Deputy Superintendent of Police for the year 2017-2018,
prior to the appointment of the petitioners to the said post.
WP No. 33544 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Declaration to declare the
amendment made to Special Rules for Tamil Nadu Police Subordinate Service
Rules, 1955 issued in G.O. Ms. No.868, Home (Police VI) Department dated
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21.11.2017 notified in Tamil Nadu Government Gazzette dated 13.12.2017 is
unconstitutional, ultra vires, arbitrary, illegal, discriminatory and null and void.
WP No. 34373 of 2018:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records on the file of the first respondent pertaining to the amendment to Rule
25 (a) of the Special Rules for Tamil Nadu Police Subordinate Service Rules, 1955
issued vide G.O. Ms. No.868, Home (Police VI) Department dated 21.11.2017 and
quash the same and to issue consequential direction to the respondents herein to
desist from including any Inspector of Police who was initially appointed as Sub
Inspector of Police under 20% direct recruitment quota from among in-service
candidates, over and above the Inspector of Police who were directly recruited Sub
Inspectors of Police for the year 1994-1995 in the panel for promotion to the post of
Deputy Superintendent of Police for the year 2017-2018 nor to promote any of
them prior to the empanelment and promotion of the petitioners herein as Deputy
Superintendent of Police.
W.A. No. 484 of 2018:- Appeal filed under Clause 15 of Letters Patent
against the Order dated 27.06.2017 passed in WP No. 4355 of 2017 on the file of
this Court
WP No. 16280 of 2005
For petitioners : Mr. M. Ravi
For respondents : Ms. Narmada Sampath
Additional Advocate General
assisted by Mr. V. Shanmuga Sundar
Special Government Pleader for RR1 & 2
COMMON ORDER
R. Subbiah, J The Sub-Inspectors of Police (Men) who were recruited in the year 1994- 1995, either through direct recruitment or in-service candidates, have waged a pitched battle for fixation of inter-se seniority by filing these writ petitions/writ appeal.
2. The brief facts which are necessary for disposal of these cases are narrated http://www.judis.nic.in hereinafter:-
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3. The Director General of Police & Chairman of Tamil Nadu Uniformed Services Recruitment Board (in short Board) had issued notification dated 01.01.1994 inviting applications for selection and appointment of 500 Sub Inspectors of Police by direct recruitment. As per the aforesaid notification dated 01.01.1994, aspiring candidates must have completed 20 years of age and should not be more than 30 years as on 01.01.1994. In the recruitment drive, the departmental candidates also applied, however, most of them had crossed 30 years and therefore they could not be considered and their applications were returned on the ground of not fulfilling the age criteria. Aggrieved by the same, some of the in-service candidates working in the Police Department approached the erstwhile Tamil Nadu Administrative Tribunal (Tribunal for brevity) by filing O.A. No. 1368 of 1994 etc., batch seeking to assail the action of the Board in rejecting their claim inspite of the fact that they have put in five years or more service in the Department and prayed to direct the official respondents to give preference to them in the recruitment drive. The Tribunal, by an order dated 18.01.1995 held that the departmental candidate also must be given preference by conducting a special selection from among the graduates working in the department, who have completed about five years of service against the direct recruitment quota. In effect. The Tribunal held as follows:-
"It would therefore be desirable that a special selection is made from among the graduates working in the department who have completed about five years of service against the direct recruitment quota. Considering that the direct recruitment quota is not fully utilised, such requirement would facilitate the filling up of the quota at the same time provide opportunities for advancement to the departmental personnel. If such selection is taken up the relaxation to enable these applicants to participate in the current selection will not be necessary." (emphasis supplied) http://www.judis.nic.in 4. Pursuant to the above order dated 18.01.1995 of the Tribunal, the 6/49 wp 16280 of 2005 Government also issued G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 directing the Board to earmark 20% of vacancies in the selection for direct recruitment of Sub-Inspector of Police from among in service candidates who otherwise satisfied the other criteria for such selection. It directed that such in-
service candidates who had completed five years of service were eligible for being recruited in the 20% quota earmarked for them. It stipulated that they should have a clean track of record without subjecting themselves to any disciplinary proceedings, minor punishments or black mark, reprimand or censure in the five years preceding the date of notification of selection. It was further stated therein in para No.4 of the order that the inter se seniority of the candidates selected against this recruitment would be above those selected in the open competition in that year." In other words, qualifying in-service candidates were entitled to seniority over the selected candidates from the open competition. For the sake of clarity, the content of G.O. Ms. No.1054 dated 13.07.1995 is produced below:-
"At present, selection to the post of Sub-Inspectors of Police Men (direct recruitment) is conducted by the Tamil Nadu Uniformed Services Recruitment Board. In order to encourage the Police Constables and Head Constable to enhance their efficiency and educational qualification for early promotion as Sub-Inspector of Police, it is considered that a 20% reservation could be made in the direct recruitment to the post of Sub- Inspector of Police. Further, in its judgment dated 18.01.1995 in O.A. No. 1368/94 (batch cases) the Hon'ble Tamil Nadu Administrative Tribunal suggested that it would be desirable to have a special selection made from among the graduates working in the department who have completed 5 years of service against the direct recruitment quota.
2. The Government have examined the matter in detail.
Accordingly, they direct that 20% of the vacancies in the direct recruitment of the Sub-Inspector of Police be reserved for the Police Constables and Head Constables in category I and their equivalent ranks in the Armed Reserve and Tamilnadu Special http://www.judis.nic.in Police Branch in category II and III. The direct recruitment quota 7/49 wp 16280 of 2005 of Sub-Inspector of Police will be filled 80% by from open market and 20% from serving police personnel in all the three categories. (emphasis supplied)
3. The recruitment shall be made by Tamilnadu Uniformed Services Recruitment Board against this 20% reservation in each Year of direct recruitment from among the police constables and Head Constables and their equivalent rank in Armed Reserve and Tamilnadu Special Police who are graduates and who have completed 5 years of service. The candidates should have a clean record without any punishments, other than the minor punishments of black mark, reprimand or censure, in the 5 years preceding the date of notification of selection.
4. The Tamilnadu Uniformed Services Recruitment Board shall follow the prescribed norms and procedures adopted in the direct recruitment selection of Sub-Inspectors such as physical measurements, physical efficiency test, written test viva voce etc., The inter-se seniority of the candidates selected against this recruitment would be above those selected in the open competition in the year. (emphasis supplied)
5. Subsequently, by a letter dated 01.08.1995 of the Government addressed to the Chairman of the Board, it was intimated that considering the proposal received from the Director General of Police, the Government had decided to recruit a total 1100 persons for the post of Sub-Inspector of Police (men) as against the 500 posts for which the Board has issued the notification dated 01.01.1994. Accordingly, the selection process for the open quota candidates numbering 1100 was completed on 20.01.1996 while the process of selection of in- service departmental candidates was completed on 25.09.1996. Thus, 600 persons were selected from open market and 267 from among the in-service candidates. It is pertinent to note that no separate notification was issued for the enhanced 600 vacancies, over and above the 500 vacancies notified earlier.
6. After completion of the recruitment of the police personnel, the http://www.judis.nic.in 8/49 wp 16280 of 2005 selected candidates had to undergo a mandatory training for a period of 2 1/2 years. It appears that there was no facility to accommodate all the 1100 personnel selected for appointment to the post of Sub-Inspector of Police for such training. Therefore, it was decided to impart training to 500 (actually 475) personnel in the first phase and accordingly, training was ordered to be imparted for the first 475 personnel selected for the open quota. Simultaneously, a proposal was sent for imparting training to the remaining 600 candidates recruited in the same recruitment drive as also the in-service candidates. The Government, accordingly, issued orders in G.O. Ms. No.417, Home (Pol-3) Department dated 14.03.1996 and G.O. Ms. No.630, Home (Pol.3) Department dated 02.05.1997 and directed that training be given to the remaining 600 candidates (direct recruits) along with 267 candidates (in-service candidates) recruited as Sub-Inspector of Police. Accordingly, the remaining 867 candidates were sent for training on 02.06.1997.
7. As far as fixation of seniority is concerned, in order to give preference to the in-service candidates who were appointed against 20% quota earmarked for them, the respondents have fixed them over and above the remaining 600 candidates who were recruited for the post of Sub-Inspector of Police by direct recruitment by issuing G.O. Ms. No.1054, Home (Police) Department dated 13.07.1995. Aggrieved by the same, representations were sent to the Government stating that the seniority of the departmental candidates, who were sent for the training only on 02.06.1997, ought not to have been fixed above the directly recruited candidates in the same selection drive especially when they were sent for training even as early as on 01.03.1996. Meantime, the departmental candidates http://www.judis.nic.in 9/49 wp 16280 of 2005 filed WP No. 2068 of 2005 before this Court with a prayer to direct the respondents to fix their seniority over the 500 open quota candidates who were sent for training on 01.03.1996. By an order dated 30.10.2009, this Court directed the Director General of Police to consider the claim of the petitioners for fixation of their seniority in accordance with G.O. Ms. No. 1054, Home (Police) Department dated 13.07.1995 and G.O. Ms. No.1627, Home (Pol.3) Department dated 24.10.1996.
8. Pursuant to the order dated 30.10.2009, by applying Rule 25 (a) of the Special Rules for Tamil Nadu Police Subordinate Service, the seniority of 267 departmentally selected candidates appointed in the year 1997 have been fixed above the 2nd batch of the 600 open market candidates appointed in the same year i.e., 1997 in the respective wings and below the 1st batch of 500 open market candidates selected during the year 1994 and appointed in the previous year 1996. It was also reasoned that even though the vacancies were for the year 1994, 1995 and 1996, they were filed up by the notification dated 01.01.1994, the notification to fill up the 267 vacancies earmarked for departmental candidates was published on 18.10.1995 i.e., with a gap of more than 1 1/2 years.
9. Assailing the fixation of the seniority in the manner stated above, the 20% departmental candidates have filed WP No. 2727 of 2014 etc., batch by contending that their seniority has to be fixed over and above the 500 open quota candidates appointed on 01.03.1996 and not below them. The said writ petition No. 2727 of 2014 was dismissed by this Court on 24.11.2014 by holding that seniority can be counted only from the date of appointment and not from the date of http://www.judis.nic.in 10/49 wp 16280 of 2005 recruitment. Aggrieved by the dismissal of WP No. 2727 of 2014, Writ Appeal No. 1599 of 2014 and 1600 of 2014 were filed which were also dismissed by the Division Bench of this Court on 11.03.2015. Challenging the same, SLP (Civil) No. 15710 to 15712 of 2015 was filed before the Honourable Supreme Court which were also dismissed on 09.02.2017.
10. In these batch of cases, it is the contention of the in-service candidates that their seniority has to be fixed over and above the 1100 directly recruited Sub-Inspectors of Police as they had prior experience in the department for over five years. But it is the contention of the Government that in so far as the inter-se seniority of the first batch of 500 directly recruited Sub-Inspectors of Police is concerned, it has reached a finality by virtue of the order passed by the Honourable Supreme Court on 09.02.2017. Moreover, the date of appointment of the first batch of 500 directly recruited candidates is earlier than that of the rest of the 600 directly recruited candidates as well as the in-service candidates. Further, the date of appointment of the first batch of 500 directly recruited candidates was 01.03.1996, whereas, the rest of the 600 directly recruited candidates and 267 in- service candidates came to be appointed only on 02.06.1997 though their selection process was completed on 20.01.1996 and 25.09.1996 respectively. Therefore, the 600 directly recruited candidates and the 267 in-service candidates cannot be placed above the 500 directly recruited candidates. Among the 600 directly recruited candidates and 267 candidates, the 267 in-service candidates can be placed above the 600 directly recruited.
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11. It is the contention of the 600 directly recruited candidates that there was no separate notification issued for their recruitment and they were recruited along with the 500 candidates for whom the notification dated 01.01.1994 was issued. Therefore, it is their contention that they cannot be in any manner excluded or segregated from the 500 directly recruited candidates. Therefore, the inter se seniority has to be fixed in such a manner that the 1100 directly recruited candidates have to be placed above the 267 in-service candidates. This is more so that recruitment and selection of the 267 in-service candidates was by way of order passed in G.O. Ms. No.1054 dated 13.07.1995 which was issued on the basis of the directions issued by the Tribunal. Therefore, the 267 in-service candidates have to be placed below the (500 + 600) 1100 directly recruited candidates selected from the open market.
12. For understanding the dispute among the parties to these cases, one more factor is required to be considered. Pursuant to the order passed by the Government in G.O. Ms. No.1054 dated 13.07.1995 earmarking 20% for the departmental candidates against the direct recruits, G.O. Ms. No.1626 dated 24.10.1996 was issued by the Government to amend the Special Rules for Tamil Nadu Police Subordinate Service for reservation of 20% of vacancies of direct recruitment quota for the departmental candidates. The amendment was deemed to have come into force with effect from 13.07.1995. However, the amendment was not published in the Government gazzette. Subsequently, in the year 2009, Government issued orders in G.O. Ms. No.461, Home (Police-VI) Department dated 10.06.2009 to amend the Special Rules for placing 20% departmental quota http://www.judis.nic.in 12/49 wp 16280 of 2005 candidates over and above the direct recruits through open market with retrospective effect from 19.05.2008. Again this has also not been notified in the Government gazzette. After several years, the government issued G.O. Ms. No.868, Home (Police-VI) Department dated 21.11.2017 and amended Rule 25 (a) of Special Rules for fixation of seniority of 20% Departmental quota candidates above the open quota candidates with retrospective effect from 13.07.1995, superseding the earlier orders in G.O. Ms. No.1054 dated 13.07.1995 and G.O. Ms. No.461 dated 10.06.2009, which would prejudice the candidates appointed through the open market. In effect, it is the contention of the direct recruits that such amendment brought after 22 years with retrospective effect has prejudically affected their service rights.
13. While the facts are so as stated above, some of the Women Sub Inspectors of Police recruited in the year 2001-2002 have filed WP No. 4355 of 2016 to quash the G.O. Ms. No.461, Home (Police-VI) Department dated 10.06.2009 issued by the first respondent in so far as it relates to amendment to Special Rules for the Tamil Nadu Police Subordinate Service to the effect that seniority of the Sub-Inspectors of Police directly recruited from the Departmental quota will be fixed above the direct recruits selected from open quota in the same year and G.O. Ms. No.196, Home (Police - III) Department dated 08.03.2005 issued by the first respondent in so far as protecting the seniority of the personnel who complete the training at later point of time from the regular batch and the order dated 31.10.2015 issued by the Director General of Police as illegal and consequently direct the respondents to draw Seniority list of Women Sub http://www.judis.nic.in 13/49 wp 16280 of 2005 Inspectors of Police recruited for the year 2001-2002 in accordance with Rules and effect promotion on the basis of the seniority so drawn in accordance with law. The said writ petition was taken up for hearing by the learned single Judge along with similar writ petitions and they were dismissed on 27.06.2017 stating that G.O. Ms. No.461 dated 10.06.2019 was not notified and therefore it is not enforceable in law. The learned single Judge has also given direction to the Government to amend the Special Rules for Tamil Nadu Police Subordinate Rules for fixing the seniority of the in-service candidates. Aggrieved by the same, Writ Appeal No. 484 of 2018 is filed. After dismissal of the writ petitions on 27.06.2017 and prior to filing of the present Writ Appeal No. 484 of 2018, the Government effected amendment to Rule 25 (a) of The Special Rules for the Tamil Nadu Police Subordinate Service by way of G.O. Ms. No.868 dated 21.11.2017 and also gazzetted it
14. It is the contention of the Government that though amendment was brought in the year 1995, inadvertently, it was omitted to be notified in the government gazzette and such mere omission cannot be put against the department. It is also submitted by the Government that even in the absence of a notification in the gazzette, the government is entitled to bring an amendment at any time. The Government can always fill up the gap in the rules by way of executive orders and the same cannot be questioned unless the amendments are inconsistent with the existing Rules. All along the in-service candidates were ordered to be placed over and above the directly recruited candidates and in respect of Tamil Nadu Subordinate Services, they were enforced in respect of Taluk Police but not to the Armed reserved police. Similarly, in respect of Tamil http://www.judis.nic.in 14/49 wp 16280 of 2005 Nadu Special Police, Rule 24 (a) was amended by G.O. Ms. No.1626 dated 24.10.1996 and the same was already notified by the Government in the Gazzette. In Tamil Nadu Special Police, all along the in-service candidates are placed over and above the directly recruited candidates as the Special Rules concerning them was amended. The cumulative effect would show that the present amendment is nothing but rectification of a bonafide omission.
15. (i) Mr. Singaravelan, learned Senior counsel appearing for M/s. Bala and Daisy for the petitioners in WP No. 1404 of 2018, who are in-service candidates appointed along with the directly recruited candidates, would contend that the amendment brought to rule 25 (a) of the Special Rules for Tamil Nadu Police Subordinate Rules is wholly justified inasmuch as it was introduced with an intention to give a chance for promotion to the departmental candidates who were graduates and who have put in five years of meritorious service without any adverse remarks. The purpose of introducing amendment with retrospective effect is to confer seniority in the matter of promotion to the departmental candidates, who may retire without getting due promotion inter alia to implement the order of the Tribunal dated 18.01.1995. In this context, the learned Senior counsel placed reliance on the decision of the Honourable Supreme Court in the 2004 (4) SCC 65 and AIR 1980 SC 444 to contend that when the Government has chosen to exercise its executive power for achievement of certain objects, it cannot be criticised especially when providing 20% quota for the departmental candidates will not be in conflict with the existing Rule. Thus, 267 in-service departmental candidates recruited under 20% quota can claim seniority over and above the http://www.judis.nic.in 15/49 wp 16280 of 2005 candidates selected from the open market as per the amendment notified in G.O. Ms. No.868 dated 21.11.2017. It is further stated that though there is no specific word for seniority for the 20% of departmental candidates in the notification in G.O. Ms. NO.1626, Home (Police-III) Department dated 24.10.1996 for all the three categories, including the categories under Tamil Nadu Special Subordinate Service Rules, the amendment notified to the Tamil Nadu Special Police Subordinate Service by way of G.O. Ms. No.1627, notified on the same date to give the benefit of seniority to all the three categories fallen under both the sets of rules namely, Tamil Nadu Police Subordinate Service Rules covering Taluk Police and Armed Reserve and the Tamil Nadu Special Police Subordinate Service Rules governing a single category. In view of the same, according to the learned Senior counsel, the intention of the rule makers is very clear that the amendment is meant for all the three categories of police personnel namely (i) Tamil Nadu Special Police (ii) Armed Reserve Police and (iii) Taluk Police. It is further contended that according to the Doctrine of pith and substance, it is the substance of the amendment which has to be taken note of and not the caption or any other technical side of the amendment. If the said principle is applied to G.O. Ms.No.1054 dated 13.07.1995 which covers all the three categories of police personnel, directly recruited candidates cannot be allowed to contend that the amendment was issued after several years and hence suffers from latches. If any other interpretation is given to the above, it will lead to treatment of two equals as unequal and would be directly hit by Articles 14, 16 and 21 of the Constitution of India. In any event, even in the absence of amendment, G.O. Ms. No.1054 can be implemented independently though it is an executive order and the Government can always fill up the gap in the http://www.judis.nic.in 16/49 wp 16280 of 2005 rules by way of executive orders. The Government is competent to fill up the gaps in the rules by executive orders and the same cannot be challenged unless and otherwise it is against the Rule. A Government order cannot be passed to defeat the rule but it can be passed to provide further or add further to the existing Rule. In this case, Rule 25 does not speak about the departmental candidates at all to take part in the selection by way of direct recruitment along with the open market candidates and their seniority position. Rule 25 speaks about a direct recruitment alone and it does not speak about the direct recruitment chance to the departmental candidates to the extent of 20%. In order to substantiate his submission, the learned Senior counsel for the petitioners relied on the decision rendered in the case of Sant Ram Sharma vs. State of Rajasthan and another reported in 1967 AIR 1910 to contend that in the absence of statutory Rules framed, government is empowered to issue administrative instructions and such instructions will have a binding force. The relevant portion of the decision reads as follows:-
"We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue administrative instructions not inconsistent with the rules already framed."
http://www.judis.nic.in (ii) For the same proposition, the learned Senior counsel relied on the 17/49 wp 16280 of 2005 decision of the Honourable Supreme Court in State of Andhra Pradesh and another vs. Layu Narendranath and others etc., reported in 1971 (1) Supreme Court Cases 607 wherein it was held that the State Government, during the process of admission to medical college, is empowered to prescribe rules and regulations, including qualifying examination for the purpose of selecting the candidates. In para No.8 of the said Judgment, it was held thus:-
"8. The above provision of law do not make it incumbent upon the Government to make their selection in accordance with the marks obtained by the appellant-candidate at the qualifying examination. Obtaining 50% of the marks at the qualifying examination was the first hurdle to be crossed by any candidate before he could submit an application for admission into a medical college. The Government, which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe a test of their own, which was not against any law. Merely because they tried to supplement the eligibility rule by a written test in subjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed. The test prescribed by the Government must be considered in the light of a second hurdle for the purpose of a screening to find out who of all the candidates applying should be admitted and who should be rejected. Merely because the University had made regulations regarding the admission of students to its degree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission to such courses of study. If the number of candidates applying for such admission far exceeds the number of seats available the University have to make its choice out of the applicants to find out who should be admitted and if instead of judging the candidates by the number of marks obtained by them in the qualifying examination, the University thinks fit to prescribe another test for admission no objection can be taken thereto. What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B.B.S. course."
(iii) By placing reliance on the above decisions, the learned Senior http://www.judis.nic.in 18/49 wp 16280 of 2005 counsel would contend that the Government, in order to afford an opportunity to the in-service candidates apportioned 20% of the vacancies to them taking note of the fact that they have already served the department for not less than five years. At the time of such selection, the in-service candidates not only possessed rich experience but were also considerably aged when compared to the candidates selected from the open market. Therefore, in order to ensure that the interest of the in-service candidates are adequately protected, the Government has brought in amendment to place the in-service candidates selected in the same recruitment above the candidates recruited from the open market. The Government is wholly justified in bringing in such amendment besides the power of government to give preference to in-service candidates cannot be called in question by the candidates selected from the open market. The learned Senior counsel therefore prayed for allowing WP No. 1404 of 2018 as prayed for.
16. Mr. Krishna Ravindran, learned counsel appearing for the petitioners in WP No. 1584 of 2018 would contend that there was no promotional avenue or direct recruitment chance available to the Police Constables and therefore, when the selection process for direct recruitment of Sub-Inspectors of Police (Men) was in progress, some of the in-service candidates approached the Tribunal and on the basis of the observations made by the Tribunal, the Government issued G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 ordering to earmark 20% of the post of Sub-Inspectors of Police to them with a further observation that "the inter-se seniority of the candidates selected against this recruitment would be above those selected in the open competition in the year". Therefore, by virtue of http://www.judis.nic.in 19/49 wp 16280 of 2005 G.O. Ms. No.1054 dated 13.07.1995, the seniority of the in-service candidates has to be fixed over and above the direct recruits. However, for the reasons best known, the official respondents have not implemented the aforesaid Government Order in letter and spirit and failed to fix the seniority of the in-service candidates. The Government has already brought in amendment to Rule 25 of the Special Rules of the Tamil Nadu Police Subordinate Service with retrospective effect from 13.07.1995. However, the amendments have not been implemented for the reasons best known to the respondents. Therefore, the learned counsel would pray for issuing appropriate direction to the official respondents to implement G.O. Ms. No.868, Home (Police-VI) Department dated 21.11.2017 and consequently grant promotion to the petitioners in WP No. 1584 of 2018 to the post of Deputy Superintendent of Police with all other service and monetary benefits.
17. (i) Mr. Balan Haridas, learned counsel appearing for the direct recruit candidates who are respondents in WP No. 1404 of 2018, appellants in W.A. No. 484 of 2018 and petitioners in WP No. 17082 of 2018 would contend that the appellants in W.A. No. 484 of 2018 participated in the selection and were appointed to the post of Sub-Inspector of Police by direct recruitment during the selection year 2001-2002. After successful completion of the written examination and other skill test, the appellants were sent for training during the year 2005. The probation of the appellants were declared on 16.03.2007 and they have now completed 14 years of service. According to the appellants, some of the juniors who have taken training after the appellants have completed their training, were given promotion to the post of Inspector of Police on 31.10.2015. The Department, http://www.judis.nic.in 20/49 wp 16280 of 2005 without even drawing the seniority list of Sub-Inspectors of Police recruited during the year 2001-2002 has conferred promotion to the juniors of the appellants whimsically. On enquiry, the appellants came to know that the Government issued G.O. Ms. No.461 dated 10.06.2009 bringing amendment to Rule 25 of the Special Rules of Tamil Nadu Police Subordinate Service Rules wherein proviso has been added to the effect that "Provided also that the seniority of the Sub-Inspectors of Police directly recruited from the departmental quota shall be fixed above the direct recruits selected from the open quota in the same year." Even this amendment has not been published in the gazzette and consequently it has not come into force. While so, based on this amendment, which was not even gazzetted, the juniors of the appellants were given promotion, which is arbitrary and illegal. The appellants therefore filed WP No. 4355 of 2016 before this Court and this Court, by order dated 27.06.2017 directed the official respondents to fix the seniority in respect of 20% of candidates belonging to departmental quota after carrying necessary amendments in the Special Rules for Tamil Nadu Police Subordinate Service and thereafter prepare the seniority list. Aggrieved by the order dated 27.06.2017 in WP No. 4355 of 2016, the appellants have filed W.A. No. 484 of 2018.
(ii) Mr. Balan Haridas would proceed to contend that subsequent to the order dated 27.06.2017 in WP No. 4355 of 2016, the Government has issued G.O. Ms. No.868, Home (Police VI) Department dated 21.11.2017 bringing amendment to Rule 25 (a) of the Special Rules for Tamil Nadu Police Subordinate Services, 1955 retrospectively with effect from 13.07.1995 and the amendment reads as follows:-
"Provided also that the seniority of the Sub-Inspectors of http://www.judis.nic.in Police directly recruited under the departmental quota shall be 21/49 wp 16280 of 2005 fixed above the persons directly recruited under open quota in the same recruitment."
(iii) The learned counsel for the appellants would further contend that on the basis of the above amendment, draft seniority list was published on 21.12.2017 for which the appellants have submitted their objections especially when the amendments were brought into force with retrospective effect from 13.07.1995 giving unfair advantage to the departmental candidates who have participated in the selection and were given appointment to the post of Sub-Inspector of Police through departmental quota. When the process of selection in respect of departmental candidate and open quota direct recruitee candidate is one and the same, there cannot be further distinction while fixing seniority. Such a concession given to the departmental candidate has no nexus to the object sought to be achieved viz., efficiency in public service in the disciplined force. According to the learned counsel, the appellants, who have completed the training even in the year 2004 cannot be placed below the persons who had undergone training later. In other words, the appellants underwent training from 15.04.2004 and completed it on 15.09.2005. Their probation was declared on 16.03.2007 while so, candidates who have undergone training after the appellants cannot be placed above the appellants while drawing seniority. The amendment brought to Rule 25 (a) of The Special Rules for Tamil Nadu Police Subordinate Service is arbitrary, whimsical and it offends Article 14 and 16 of The Constitution of India. The contention of the departmental candidate that they are older than the directly recruited and they may not get any opportunity of promotion cannot be a reason for placing them above the directly recruited candidates from the open market. The departmental candidates who participated in the selection process in the 20% quota cannot be given any http://www.judis.nic.in 22/49 wp 16280 of 2005 further concession by conferring them seniority over and above the directly recruited open market candidates. Further, in the notification for selection to directly recruited candidates both from the open market and departmental quota candidates, there was no reference or clause to the effect that on being selected the earlier service for constable will be taken into account for fixing seniority. In the absence of any such condition or clause in the notification for employment, the fixation of seniority of the departmental candidate over and above the directly recruited open market candidate is arbitrary. The learned counsel therefore prayed for allowing W.A. No. 484 of 2018 as also WP No. 17082 of 2018.
18. (i) Mr. M. Ravi, learned counsel appearing for the petitioners in WP No. 16280 of 2005 and WP Nos. 3013, 3048, 3893 and 21810 of 2018 would vehemently contend that Rule 3 (a) (i) read with Annexure I of The Special Rules for Tamil Nadu Police Subordinate Service speaks about the method of appointment to the several classes/categories. As per Rule 25, the seniority of a person in any class or category of the service shall, unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the appointing authority subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority unless he has been appointed temporarily under sub-rule (d) of rule 10 or sub-rule (b) of rule 15 as the case may be. In the case of sub-inspectors the seniority shall be fixed on the basis of the marks obtained by them in the final examination in the police training college. Therefore, the rule that prevailed as on the date of notification dated 01.01.1994 http://www.judis.nic.in 23/49 wp 16280 of 2005 was that 60% of the vacancies in the post of Sub Inspector of Police in Tamil Nadu Police Subordinate Service have to be filled up by direct recruitment and 40% of the vacancies have to be filled up by promotion from among the in-service candidates working in the department and the seniority within the direct recruits will be fixed only on the basis of the merit rank acquired by them in the police training college and the marks obtained by them during the selection will not have any bearing on their seniority.
(ii) Mr. Ravi proceeded to contend that even the amendment made to the statutory rules subsequent to the commencement of the selection cannot have any bearing on such selectees. According to him, mere executive instructions issued subsequent to the date of notification cannot have any bearing on the selection for the year 1994 conducted in pursuance of the notification dated 01.01.1994. Even the amendment made to the Special Rules for Tamil Nadu Police Subordinate Service providing 20% of the vacancies for the graduate in-service candidates who participated in the same selection process along with the open market candidates was not given retrospective effect from 01.01.1994, but only from 13.07.1995, well after the commencement of selection for 1994-1995 recruitment. Thus, the rule providing 20% of the vacancies to be filled up by graduate in-service candidate which was issued only from 13.07.1995 will not have any bearing on the selection process or the selectees in pursuance of the notification dated 01.01.1994. Such subsequent amendment made to the Rule after lapse of 22 years from the date of executive instruction pertaining to seniority among the direct recruits will also obviously have no bearing on the 1100 directly recruited candidates selected for the year 1994-1995 pursuant to the notification dated 01.01.1994. It is his contention http://www.judis.nic.in 24/49 wp 16280 of 2005 that the basis for issuing G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 is the Judgment dated 18.01.1995 made in O.A. No. 1368 of 1994 rendered by the Tamil Nadu Administrative Tribunal. The said O.A. No. 1368 of 1994 etc., came to be filed seeking preference to the in-service candidates and the Tribunal also entertained the Original Application and issued a direction. Therefore, the participation of in-service candidates subsequent to the initiation of process of selection will not affect the on-going selection and recruitment done in pursuance to the notification dated 01.01.1994. In any event, the executive instructions can supplement the existing Statutory Rules, however, it cannot override or supplant the statutory rules. The order passed by the Government in G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 will be of no relevance and cannot be acted upon at all against the on-going selection commenced in pursuance of notification dated 01.01.1994. Therefore, when the basis for issuing G.O. Ms. No.1054 dated 13.07.1995 is the Judgment dated 19.01.1995 rendered in O.A. No. 1368 of 1995 etc., batch by the Tribunal, the sudden introduction of a provision to enmasse place the departmental candidates over and above the directly recruited open market candidates in the seniority list will be in violation of the then prevailed Rule 25 (a) of the Special Rules for Tamil Nadu Subordinate Services as per which seniority will be reckoned on the basis of the merit acquired on the basis of the performance in the training college. Further, G.O. Ms. No.1626, Home (Police-III) Department dated 24.10.1996 which provides for allotting 20% of the vacancies originally allotted for direct recruitment has not been gazzetted nor notified in the gazzette till date, hence, the Rule providing for 20% of vacancies to in-service candidates cannot be acted upon.
http://www.judis.nic.in 25/49 wp 16280 of 2005
(iii) The learned counsel would further contend that there were two separate notifications issued by the Department, one dated 01.01.1994 for recruitment of 1100 candidates from the open market and the other is dated 18.10.1995 which provided for separate stage of selection for the departmental candidates. In such view of the matter, the Government in order to avoid delay the implementation of the directions of the Tribunal had chosen to issue a separate notification dated 18.10.1995 exclusively for departmental candidates by keeping the crucial date for eligibility as 01.07.1995 and providing no upper age limit. Therefore, the departmental candidates cannot take shelter behind the methodology adopted to arrive at the 20% vacancies for separate selection in pursuance of the notification dated 18.10.1995.
(iv) It is the vehement contention of Mr. Ravi, learned counsel that the 1100 candidates includes the 500 earlier appointed direct recruits and the remaining 600 direct recruits and they have participated jointly in the selection and appointment to the post of Sub-Inspector of Police pursuant to the notification dated 01.01.1994. Therefore, the crucial date of eligibility of the 1100 candidates is 01.01.1994, being the date of notification. The 1100 candidates were called upon to take physical efficiency test and certificate verification on 20.03.1994. A written test was conducted for them on 30.03.1994 followed by an interview on 19.07.1995. They were subsequently subjected to medical examination on 11.10.1995. Ultimately, on 11.10.1995, all the 1100 candidates were shortlisted and selected for the post of Sub-Inspector of Police. Even though 500 + 600 candidates were selected jointly, due to non-availability of sufficient number of training centres, the first 500 rank holders of the same selection were appointed and deputed for http://www.judis.nic.in 26/49 wp 16280 of 2005 training on 01.03.1996. Subsequently, the remaining 600 candidates were sent for training. On the contrary, the departmental candidates were subjected to selection process pursuant to a notification dated 18.10.1995 and they were subjected to physical efficiency test on 06.11.1995. The Departmental candidates have attended vivo voce on 15.03.1996 and eventually they were selected on 15.05.1997 and sent for training only on 02.06.1997. Thus, it is clear that the 1100 direct recruits underwent the selection in the same recruitment year namely 1994-1995 pursuant to the notification dated 01.01.1994 and the 267 departmental candidates were subjected to selection pursuant to a notification dated 18.10.1995. Therefore, the 267 departmental candidates cannot be said to be selected in the same recruitment year namely 1994-1995 or their seniority cannot be fixed on par with the 1100 candidates. It is his contention that the 267 departmental candidates belong to a different recruitment process and they cannot be treated on par with the 1100 candidates.
(v) As regards the inter se seniority, the seniority of the first batch of 500 candidates has been settled by virtue of the judgment dated 11.03.2015 in W.A. No. 1599 and 1600 of 2014 passed by the Division Bench of this Court which was subsequently affirmed by the Honourable Supreme Court of India. The decision rendered in favour of the first batch of 500 candidates will therefore bind the 600 candidates selected through the open market and the 267 candidates. This is more so that the order of appointment issued to the 600 candidates on 12.05.1997 while such orders of appointment was issued to the departmental candidates on 15.05.1997. The stand of the department therefore in placing the 500 vacancies over and above the 267 departmental candidates and placing the 600 direct recruits http://www.judis.nic.in 27/49 wp 16280 of 2005 from open market below the 267 candidates as if they belong to different recruitment is devoid of reasoning. In this context, the learned counsel relied on the decision of the Honourable Supreme Court in A. Raghu vs. Government of Andhra Pradesh and others reported in (2015) 14 SCC 221 wherein it was held that candidates selected through a common selection process but bifurcated in different training groups at different training centres at different points of time are to be treated as one batch and the yardstick for determining their seniority is the aggregate marks obtained in the police training college. According to the learned counsel, following the aforesaid decision of the Honourable Supreme Court, the department revised the seniority of Women Sub Inspectors of police selected through a common selection process but failed to apply the same yardstick in favour of the Sub-Inspectors (Men) recruited in the same selection process. The learned counsel therefore prayed for allowing WP No. 16280 of 2005 and WP Nos. 3013, 3048, 3893 and 21810 of 2018 and to direct the official respondents to draw a seniority list for the directly recruited candidates and subsequently draw a seniority list for the in-service candidates.
19. (i) Mr. G. Sankaran, learned counsel appearing for the petitioners in WP No. 33548 of 2018 would contend that the Government issued orders in G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 reserving 20% of vacancies in the direct recruitment of Sub-Inspector of Police for the departmental candidates with further direction that inter-se seniority of the candidates selected through Departmental quota would be placed above those selected in the open quota in the relevant year. Subsequently, the Government http://www.judis.nic.in 28/49 wp 16280 of 2005 issued orders in G.O. Ms. No.1626 dated 24.10.1996 to amend the Special Rules for Tamil Nadu Police Subordinate Service for reservation of 20% of vacancies of direct recruitment quota for the departmental candidates and the amendment was deemed to have come into force with effect from 13.07.1995. However, the amendment has not been notified in the Government gazzette and therefore it is not enforceable. Subsequently, the Government issued orders in G.O. Ms. No.461, Home (Police-VI) Department dated 10.06.2009 for amendment to special Rules for placing 20% departmental quota candidates above the direct recruits through open market with retrospective effect from 19.05.2008, but even this order has not been notified in the Government gazzette. While so, the government issued G.O. Ms. No.461 dated 10.06.2009 for fixation of seniority of Sub-Inspector of Police recruited from Departmental quota and direct recruits selected from open quota in the same year and accordingly it has superseded the earlier order passed in G.O. Ms. No.1054 dated 13.04.1995. Even this order has not been notified in the gazzette. While so, after several years, the government issued G.O. Ms. No.868, Home (Police-VI) Department dated 21.11.2017 amending Rule 25 (a) of Special Rules for fixation of seniority of 20% Departmental quota candidates above the open quota candidates with retrospective effect from 13.07.1995, the date on which G.O. Ms. No.1054 dated 13.07.1995 was issued, which was subsequently superseded by G.O. Ms. No.461 dated 10.06.2009. According to the learned counsel, as on date, there is no provision under Special Rules earmarking 20% of vacancies of direct recruitment to be filled up with service candidates. While so, in the absence of allocation of 20% vacancies of direct recruitment for service candidates under the Special Rules, there cannot be any incorporation of provision http://www.judis.nic.in 29/49 wp 16280 of 2005 as per the impugned Government order for conferring seniority to the "non-existing group" under the special Rules. The amendment made has no basis for enforcement in the absence of enabling provision under the Special Rules earmarking 20% of vacancies of direct recruitment for departmental quota. In any event, the question of conferring retrospective amendment to Special Rules from 13.07.1995 is not sustainable. When fixation of seniority is as per Rule 25 (a) of Special Rules, seniority of a person shall be determined by the rank obtained by him in the list of approved candidates drawn up by the appointing authority, subject to rule of reservation and it cannot be impeached or overridden by adding a proviso to the main Rule. In any event, according to the learned counsel, placing the departmental candidates over and above the open quota candidates would completely undermine the assessment of comparative merit in the selection. There is no intelligible differentia between the open quota candidates and departmental candidates participating in the selection by direct recruitment with reference to fixation of inter-se seniority. In no other service where vacancies were earmarked for service candidates, priority is given to service candidates in the matter of seniority. In this context, the learned counsel relied on the decision of the Honourable Supreme Court in (K. Kuppusamy and another vs. State of Tamil Nadu and others) reported in 1998 (3) Supreme Court Cases 469 wherein it was held as follows:-
"3. The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary, and therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is http://www.judis.nic.in admitted, were framed under the proviso to Article 309 of The 30/49 wp 16280 of 2005 Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the Rule."
(ii) By placing reliance on the above decision, the learned counsel for the petitioners would contend that the statutory rules cannot be overridden by executive order or executive practice. Therefore, based on the executive order, the inter-se seniority among the direct recruits and the departmental candidates cannot be fixed. The learned counsel therefore prayed this Court to allow WP No. 33548 of 2018 as prayed for.
20. (i) Countering the submissions of the respective counsel for the writ petitioners, Ms. Narmadha Sampath, learned Additional Advocate General appearing for official respondents would contend that while issuing the notification dated 01.01.1994, the existing vacancy, anticipated and sanctioned post and retirement vacancies of Sub-Inspector of Police (category-1) for the year 1994, 1995 and 1996 were not taken into account and therefore, the notification dated 01.01.1994 covers only the 500 vacancies in the post of Sub-Inspector of Police (Men). The selection process in respect of the candidates from open market was completed on 01/1996, while the selection of the departmental candidates under 20% quota was completed during 9/1996. After scrutiny of the police verification roll, the 500 open quota candidates were sent for training and on completion of their http://www.judis.nic.in training, they were appointed as Sub-Inspector of Police on 01.03.1996. The 31/49 wp 16280 of 2005 267 departmental candidates followed suit along with the 600 remaining open quota candidates and they were sent for training and thereafter appointed on 02.06.1997. As far as the fixation of inter se seniority is concerned, the learned Additional Advocate General relied on Rule 24 (a) of the Special Rules for Tamil Nadu Special Police Subordinate Service which provides that the seniority of the sub-inspectors directly recruited from among the members of this service and members in the Tamil Nadu Police Subordinate Service shall be fixed above the direct recruits selected from open market in the same year. According to the learned Additional Advocate General, the first batch of 500 candidates selected from open market were appointed on 01.03.1996. The remaining 600 candidates selected from open market and 267 inter-departmental candidates were appointed on 02.06.1997. Therefore, as per G.O. Ms. No.1054, Home (Police) Department dated 13.07.1997, the seniority of 267 Sub-Inspectors of Police appointed and sent for training along with 600 direct recruits had been fixed above the open quota candidates even though they were also appointed on 02.06.1997 in the respective range. As far as the first batch of 500 candidates who were sent for training, they were placed above the 267 departmentally selected candidates inasmuch as they have taken the training first and were also given orders of appointment prior to the others in the same recruitment drive. In effect, it was contended that the first batch of 500 Sub- Inspectors of Police selected under the open quota were given appointment on 01.03.1996. The remaining 600 batch of Sub-Inspectors of Police along with the 267 departmentally selected candidates were appointed to the post on one and the same day namely 02.06.1997. Therefore, while fixing the seniority of the first 500 candidates selected from the open market above the others, the seniority of the http://www.judis.nic.in 32/49 wp 16280 of 2005 departmental candidate was given preference among the rest of the 600 directly recruited open quota candidates even though they were also appointed on one and the same date namely 02.06.1997. Such fixation was made with a view to give priority to the inter-departmental candidates.
(ii) The learned Additional Advocate General would proceed to contend that the Government also issued G.O. Ms. No.537, Home (Pol.XI) Department dated 19.05.2008 wherein it was ordered to place the inter-se seniority of departmental candidates above the direct recruits selected from open quota. Accordingly, amendments were made to Special Rules for the Tamil Nadu Police Subordinate Service vide G.O. Ms. No.461, Home (Pol.6) Department dated 10.06.2009 with effect from 19.05.2008. The learned Additional Advocate General also invited our attention to amendments brought to proviso to sub-rule (a) of rule 25 of the Special Rules for Tamil Nadu Police Subordinate Service whereby it was provided that the seniority of the Sub-Inspectors of Police directly recruited under the departmental quota shall be fixed above the persons directly recruited under the open quota in the same recruitment. Such amendments have been brought into effect from 13.07.1995. However, the rule amendment relating to seniority clause was inadvertently omitted in respect of Special Rules for Tamil Nadu Police Subordinate Service, therefore, the said rule amendment orders has been issued by the Government vide G.O. Ms. No.868, Home (Pol-VI) Department dated 21.11.2017 with retrospective effect from 13.07.1995 viz., the date of issuance of the Government Order. Therefore, it is submitted that the inter se seniority fixed among the directly recruited 500 Sub-Inspectors of Police, the 267 inter- departmental candidates and the remaining 600 sub-Inspectors of Police directly http://www.judis.nic.in 33/49 wp 16280 of 2005 recruited is proper and it does not call for any interference by this Court.
(iii) The learned Additional Advocate General also contended that the fixation of seniority shall be made from the date of appointment and not from the date of recruitment or the date on which an individual was deputed for training. According to the learned Additional Advocate General, the date of appointment will be the determining factor for fixation of seniority and not the date on which a candidate passed the written examination or any other skill test. In order to buttress this submission, the learned Additional Advocate General relied on the decision of the Honourable Supreme Court in Prafulla Kumar Swain vs. Prakash Chandra Misra and others reported in 1993 Supplementary (3) Supreme Court Cases 181 wherein in Para Nos. 29 and 30, it was held as follows:-
"29. At this stage, we will proceed to decide as to the meaning and effect of the words 'recruitment' and 'appointment'. The term 'recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word 'appointment' means an actual act of posting a person to a particular office.
30. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II service. We consider these are two sources of recruitment. No where in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12 (c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that after successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotees. Both of them undergo probation. Therefore, in the light of these provisions, it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment."
(iv) By placing reliance on the above decision, the learned Additional Advocate http://www.judis.nic.in General would submit that the official respondents are wholly justified in 34/49 wp 16280 of 2005 fixing the seniority of the directly recruited Sub-Inspectors of Police and the departmental candidates on the basis of their date of appointment and by giving preference to in-service candidates by fixing their seniority over and above the 600 directly recruited candidates but below the 500 batch of directly recruited candidates who have completed their training and eventually get appointed to the post of Sub-Inspector of Police ahead of the in-service candidates. The learned Additional Advocate General therefore prayed for dismissing the writ petitions as well as the writ appeal.
21. We have heard the learned counsel on either side and perused the materials placed on record. The petitioners and/or respondents in these writ petitions/writ appeals can be categorised into three categories. As per the notification for recruitment dated 01.01.1994, initially 500 persons were sought to be recruited. These 500 candidates shall form part of the first batch. Subsequently, 600 vacancies were notified over and above the 500 vacancies notified earlier, taking the tally to 1100 (500 + 600). When the 600 candidates were to be subjected to a recruitment process, at the instance of the Tribunal, 20% of the vacancies were ordered to be earmarked for departmental candidates and accordingly 267 posts were earmarked for the departmental candidates. Thus, for the purpose of disposal of these writ petitions/writ appeals, the petitions/ respondents can be referred to as per the batch corresponding to which they were selected and/or appointed, as mentioned above.
22. In this fashion, selection and appointments were made to the post of Sub-Inspectors of police, both from the open market as well as in-service http://www.judis.nic.in 35/49 wp 16280 of 2005 candidates. Before proceeding further, it is necessary to mention that earlier, one Mr. S. Sheik Babu has filed WP No. 2570 of 2015 before this Court praying to quash the proceedings dated 20.01.2010 of the Director General of Police, Chennai in so far as he is concerned and consequently direct the respondents to publish the combined seniority list of 1367 (500 + 600 + 267) Sub-Inspectors of Police recruited directly for the year 1994-1995 as per G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 and G.O. Ms. No.1627, Home (Police-III) Department dated 24.10.1996 and make further promotions to the post of Deputy Superintendent of Police Category-1, in accordance with the seniority list. The said WP No. 2570 of 2015 was taken up along with other connected appeals in W.A. Nos. 1599 and 1600 of 2014 by the Division Bench of this Court. Before the Division Bench of this Court, the very same contentions which are raised in the present batch of writ petitions have been raised. In the above said writ petition No. 2570 of 2015, it was mainly contended that pursuant to the order passed by this Court in WP Nos. 2068 of 2015 dated 30.10.2019 and WP No. 24151 of 2005, the Director General of Police examined the claim of in-service candidates and erroneously issued the memorandum dated 20.01.2010 rejecting the claim of 267 in-service candidates for fixation of seniority over and above the first batch of 500 candidates directly recruited from the open market. Therefore, while assailing the order of rejection dated 20.01.2010 of the Director General of Police, Chennai, it was vehemently contended that two selections were made pursuant to a single notification for direct recruitment and both the selections were held in the same year. Therefore, as per Rule 25 (a) of the Tamil Nadu Police Subordinate Service, the seniority of the Sub-Inspectors directly recruited from among the directly http://www.judis.nic.in 36/49 wp 16280 of 2005 recruited candidates and the members of the Tamil Nadu Police Subordinate Service should be fixed above the direct recruits selected from the open market in the same year. It was also contended that if one set of candidates are directly recruited from the open market as Sub-Inspectors and another set of candidates are recruited by way of selection from among the members of the same year, the latter should be given seniority over and above the former as per the statutory rules. The aforesaid contentions raised on behalf of the petitioner therein was rejected by the Division Bench of this Court in the order dated 11.03.2015 passed in W.A. Nos. 1599 and 1600 of 2014 and WP No. 2570 of 2015. The relevant portion of the order dated 11.03.2015 reads as follows:-
"21. Therefore, it is clear (a) that though the original notification for direct recruitment of 500 candidates from the open market triggered the entire sequence of events, the selection from the open market and the selection from among the departmental candidates, were conducted independently and they proceeded on different tracks; (b) that while the tests such as physical measurement and physical efficiency and written examination for recruitment from the open market were over in the year 1994, leaving the medical examination alone to be held in October 1995, the very notification for recruitment of 267 candidates from among those already serving in the Department was issued only on 18.10.1995; and (c) that while the first batch of 500 candidates selected from the open market joined training on 1.3.1996, those 267 departmental candidates selected as per the decision of the Tribunal were sent for training only on 2.6.1997.
22. Therefore, we find, on facts, that at least the first batch of 500 candidates selected for direct recruitment from the open market and the set of 267 departmental candidates selected under 20% quota cannot be said to have been selected for appointment either in the same selection or in the same year. Hence, whichever way the Proviso to Rule 24(a) of the Special Rules is interpreted, it does not enure to the benefit of the in-service candidates at least in so far as the first batch of 500 candidates selected from the open market are concerned. We have already extracted the Proviso to Rule 24(a) inserted in the Special Rules under G.O.Ms.No.1627 Home dated 24.10.1996. The said rule uses the expression 'in the same year'. The appellants and their http://www.judis.nic.in colleagues cannot be said to have been recruited or even selected 37/49 wp 16280 of 2005 in the same year, as those of the first set of 500 candidates from the open market. Even if we give the benefit of a liberal interpretation and construe the expression 'in the same year' to mean 'in the same selection', the departmental candidates may not benefit, since we find, on facts, that the selections were distinct and separate.
23. Merely because the original notification (like the original sin) dated 1.1.1994 acted as the fountainhead, from out of which, two streams, one for direct recruitment from the open market and another for a special selection from among the departmental candidates flowed, it cannot be said that they belonged to the same selection. Therefore, the claim of the appellants that the appellants and other in-service candidates, who were included in the select list of 267 persons, should have seniority over and above those directly recruited from the open market, is clearly unsustainable both on facts and in law.
24. There seems to be one more difficulty for the appellants/ petitioner. The entire Tamil Nadu Police Force comprises of (i) the Local Police, who are governed by a set of rules known as the Special Rules for Tamil Nadu Police Subordinate Services; (ii) the Armed Reserve, who are governed by a set of rules ; and (iii) Tamil Nadu Special Police Battalion, which is governed by another set of special rules. The post of Sub-Inspector of Police is in Category 2 of Class I of the Tamil Nadu Police Subordinate Service and the recruitment to such a post, qualifications prescribed and other terms and conditions of service of persons holding the said post, are governed by the Special Rules for Tamil Nadu Police Subordinate Services, available in Section 34.
25. But, the post of Sub-Inspector of Police in the Tamil Nadu Special Police Battalion is in Category 2 under Rule 3 of the Tamil Nadu Special Police Subordinate Service Rules.
Consequently, the promotion to the post of Sub-Inspectors in the Special Police Battalion, is actually from Havildars, while it is from Head Constables, in the Tamil Nadu Police Subordinate Service (Local Police). Persons appointed to Armed Reserve are from another category and they are governed by another set of rules. Though the recruitment was made in common in pursuance of the directions of the Tamil Nadu Administrative Tribunal, the Government appears to have amended only the Special Rules for Tamil Nadu Police Subordinate Services and not the Special Rules for the other two Services.
26. G.O.Ms.No.1627 Home dated 24.10.1996 actually sought to cover members of both the Services namely Tamilnadu Police Subordinate Services and Tamilnadu Special Police Subordinate Services, as seen from the manner in which the Proviso to Rule 24(a) was worded. But, we do not know if an http://www.judis.nic.in amendment made to one set of rules can be read into another set 38/49 wp 16280 of 2005 of rules, merely because the same amendment spoke about both sets of rules. Therefore, the departmental candidates also have an uphill task in claiming seniority over and above the direct recruits from the open market.
27. It appears that the departmental candidates (267 in number) were given seniority over and above the second batch of 600 candidates directly recruited from the open market, since all of them joined duty together on 2.6.1997. This appears to have given rise to another set of litigation, which is independently pending on the file of this Court. Therefore, we refrain from recording a final opinion on the contention relating to the lacuna in the amendment to the rules.
28. The third contention of the respondents is that appellants/ petitioner are guilty of delay and laches. Since we have found, even on merits, that those 267 departmental candidates cannot claim seniority over and above the first batch of 500 candidates directly recruited from the open market, we do not wish to go into the question of delay and laches. Even if we give the benefit of doubt to the appellants/petitioner that they were not aware of the rejection of their request for fixation of seniority way back in the year 2010, the in-service candidates may not get the benefit of a verdict on merits.
29. In fine, we find that the claim of the appellants/petitioner is unsustainable both in law and on facts. Accordingly, both the writ appeals as well as the writ petition are dismissed. No costs. Consequently, all the miscellaneous petitions are also dismissed."
23. Therefore, it is evident that the issue as regards the fixation of inter-se seniority of the first batch of 500 candidates recruited from the open market has attained finality in the above decision of the Division Bench of this Court by holding that merely because the foundation for recruitment of the directly recruited from the open market and that of the in-service candidate is the notification dated 01.01.1994, they cannot be treated to have belonged to the same batch. The Division Bench held that the claim of the in-service candidates to have seniority over and above those directly recruited from the open market, is clearly unsustainable both on facts and in law. Thus, the Division Bench of this Court held that the first batch of 500 candidates were selected for direct recruitment from the http://www.judis.nic.in 39/49 wp 16280 of 2005 open market and the 267 departmental candidates selected under 20% quota cannot be said to have been selected for appointment either in the same selection or in the same year. In other words, the seniority of first batch of 500 candidates was directed to be fixed over and above the 267 in-service candidates as well as the other 600 candidates selected for the post of Sub-Inspectors of Police.
24. Assailing the Judgment dated 11.03.2015 of the Division Bench of this Court, SLP Civil Appeal Nos. 13513 to 13515 of 2015 were filed and the same were also dismissed by the Honourable Supreme Court on 09.02.2017. The order dated 09.02.2017 reads as follows:-
"We have heard learned counsel for the appellants. We find no reason to interfere with the impugned judgment. The appeals are accordingly dismissed.
Pending applications are disposed of."
25. Thus, the issue as regards the fixation of inter-se seniority of the first 500 batch of candidates from the open market, placing them over and above the remaining 600 candidates from the open market as well as the 267 in-service has reached a finality. Therefore, we refrain from dealing with the issue with respect to the inter-se seniority of the first batch of 500 candidates or in any way disturb the findings rendered thereof by the Division Bench of this Court, which was affirmed by the Honourable Supreme Court. Suffice it to say that the present batch of writ petitions/writ appeal can only deal with the inter-se seniority between 267 in-service candidates and the 600 candidates recruited from the open market.
26. It is evident that a notification dated 01.01.1994 was issued by the Board for selection and appointment of Sub-Inspectors of Police (Men) by direct http://www.judis.nic.in 40/49 wp 16280 of 2005 recruitment. Admittedly, pursuant to the notification dated 01.01.1994, the candidates who were already working in the police department as Head Constables Grade-I, II or III as the case may be have also applied for selection. However, since they had crossed the age of 30 years as on 01.01.1994, their candidature was rejected. At this stage, some of the in-service candidates filed O.A. No. 1368 of 1994 etc., batch. The Tribunal, by an order dated 18.01.1995 issued a direction to consider giving preference to the departmental candidate as well. In adherence to the direction issued by the Tribunal, Government issued G.O. Ms. No.1054, Home (Police-III) Department dated 13.07.1995 earmarking 20% of the vacancies in the direct recruitment quota of Sub-Inspector of Police for Police Constables and Head Constables in Category-I and their equivalent ranks. In para-4 of the order passed by the Government, it was specifically stated that "the inter-se seniority of the candidates selected against this recruitment would be above those selected in the open competition in that year.". Subsequently, the Government, by taking into account the future vacancies or the retirement vacancies that may arise, enhanced the number of vacancies notified from 500 to 1100. In other words, 600 more vacancies were notified by the Government over and above the 500 vacancies originally notified apart from earmarking 20% of such vacancies to the in-service candidates in proportion to 1100 directly recruited candidates. This is how the total number of vacancies increased to 1100 directly recruited candidates + 267 in- service candidates, as per the direction of the Tribunal.
27. As mentioned above, we are not dealing with the inter-se seniority of the first batch of 500 Sub-Inspectors of police recruited through direct recruitment http://www.judis.nic.in 41/49 wp 16280 of 2005 and we are hereunder only examining the inter-se seniority among the 600 directly recruited candidates and the 267 in-service candidates from the department. For this purpose, certain dates and events are required to be culled out and they are delineated hereunder.
28. The notification inviting application for direct recruitment of 500 candidates was issued on 01.01.1994. Successful 500 (actually 475) candidates who applied in response to the notification dated 01.01.1994 were called upon for a certificate verification, physical measurement and physical efficiency test on 20.03.1994. A written test was also conducted for them on 30.03.1994. At this stage, the in-service candidates, who could not participate in the selection process due to over-age have approached the Tribunal. The Tribunal granted status quo order on 13.04.1994. Thus, the selection process which culminated in a written test for the 500 batch of candidates came to a stand-still. Thereafter, by an order dated 13.01.1995, passed in O.A. No. 1368 of 1994 etc., batch the Tribunal directed the Government to reserve seats and consider giving preference to the in-service candidates. Pursuant to the said order of the Tribunal, Government issued G.O. Ms. No.1054 dated 13.07.1995 and earmarked 20% of the vacancies for in-service candidates subject to certain conditions that those candidates must have completed five years of service and should not have been subjected to any disciplinary proceedings or punishment.
29. However, on 19.07.1995, interview was held for the 500 (actually 475) candidates selected in the open market. At this stage, the Government issued yet http://www.judis.nic.in 42/49 wp 16280 of 2005 another order in G.O. Ms. No.1164, Home (Police-III) Department dated 01.08.1995 and enhanced the number of vacancies in the directly recruited candidate from 500 to 1100. This did not include the 267 candidates earmarked through the in-service candidates. Thereafter, the selection process of the in- service candidates commenced on 14.08.1995. When the selection process of the in-service candidates was going on, the 500 candidates selected from the open market were called for medical examination on 11.10.1995. Subsequent thereto, the in-service candidates were called for physical measurement and physical efficiency tests on 06.11.1995. Thus, the first batch of 500 candidates from the open market joined duty on 01.03.1996 and orders of appointment were issued. After their selection and appointment the remaining 600 candidates who are directly recruited candidates as well as the 267 in-service candidates were issued with order of appointment on 02.06.1997.
30. As per G.O. Ms. No.1054 dated 13.07.1995 the Government earmarked 20% of vacancies in the selection for direct recruitment of Sub-Inspector of Police from among in service candidates who otherwise satisfied the other criteria for selection. It is pertinent to mention that for the purpose of claiming seniority in the recruitment process, the date of appointment is crucial and not the date on which the candidates have undergone various tests during the selection process. The date on which a candidate undergoes physical verification test, certificate verification test, physical efficiency test or the subsequent training thereto will not confer them any right to the post to which they are selected. It is also to be mentioned that a selection of a candidate may not culminate in his or her http://www.judis.nic.in 43/49 wp 16280 of 2005 appointment due to various factors. Therefore, unless and until a person who participated in the selection process is appointed to the post, he or she cannot assert a right to get his or her seniority fixed. In other words, appointment to a post is the determining factor for the purpose of fixation of seniority. It is well settled proposition of law that a right to assert seniority will arise only from the date of joining service or rather from the date of appointment. The date of passing the written examination or undergoing the physical training cannot be construed as the date of entry into regular service. This is more so since a candidate may or may not successfully complete the physical training and eventually get appointed. Therefore, in our view, only after being appointed to a post, can a member of service be conferred with all service rights, including seniority, promotion etc., In other words, the date of appointment is the one which has to be reckoned for the purpose of determining the seniority. It is needless to mention that the right to claim seniority even before one's appointment would amount to christening name to an unborn child without even knowing the gender of such child to be born. Applying the above ratio to the facts of this case, we are of the view that the first batch of 500 candidates who were appointed on 01.03.1996 have to be placed above in the seniority over and above the remaining 600 candidates as well as the departmental candidates who were appointed on 02.06.1997. In fact, this has already been set at naught by virtue of the earlier order of the Division Bench of this Court, which was confirmed by the Honourable Supreme Court and we only want to reiterate it in this order.
31. As regards the seniority of the remaining 600 directly recruited candidates and the 267 in-service candidates, admittedly, the in-service candidates http://www.judis.nic.in 44/49 wp 16280 of 2005 have to be given a preference especially when they have already earned hands-on experience in the department and had learnt the nuances in the police department. Such experience gained by them would certainly overweigh against the 600 candidates appointed along with them on 02.06.1997. In order to strike a balance among the 600 candidates appointed along with the 267 in-service candidates, we have to adopt a yardstick which would be just and reasonable. If a method is adopted for reckoning the seniority among the directly recruited 600 candidates and the in-service candidates, preference will have to certainly be given to the in-service candidates. We wish to reiterate that the Government, while earmarking 20% of the vacancies for the direct recruitment quota of the Sub-Inspector of Police for existing Police Constables and Head Constables, imposed a condition that they must have completed five years of service and that they should not have been subjected to any disciplinary proceedings or punishment. Therefore, we can construe that only those candidates who have a clean track record have been allowed to participate in the selection process as in-service candidates and this is also one of the reasons why they should be given preference above the 600 directly recruited candidates. If such a preference is not given to the in-service candidates, atleast for determining their seniority, it would frustrate them as they have taken the mantle much ahead of the 600 directly recruited candidates.
32. On behalf of the directly recruited candidates, much has been argued that the amendments brought in after 22 years giving preference to in-service candidates is unreasonable and it has no nexus sought to be achieved. It is also vehemently contended that the statutory rules cannot be overridden by executive http://www.judis.nic.in 45/49 wp 16280 of 2005 order and therefore, the amendment brought in to Rule 25 (e) of the Special Rules for Tamil Nadu Police Subordinate Service is illegal and it will not give preference to the in-service candidates. We are unable to accept this contention advanced on behalf of the directly recruited candidates. The Government is always empowered to bring in amendment to the Statutory Rules. It cannot be gainsaid that such amendments were brought in after a great length of delay. The power to bring in amendment to a statutory rule is always vested with the State legislature and it cannot be questioned on the ground of delay. Even otherwise, in the decision relied on by Mr. Singaravelan, learned Senior counsel in the case of Sant Ram Sharma vs. State of Rajasthan and another reported in 1967 AIR 1910 it was held that government is empowered to issue administrative instructions and such instructions will have a binding force. It was also held that government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue administrative instructions not inconsistent with the rules already framed. Therefore, it is evident that while bringing in an amendment, the only requirement is that such amendment should not be inconsistent with any other law for the time being in force or in any manner repugnant to the existing rules. In the present case, the amendment brought to the Special Rules to the Tamil Nadu Police Subordinate Service Rules to the effect that preference can be given to seniority to the members in the Tamil Nadu Police Subordinate Service by placing them above the direct recruits selected from the open market in the same year. Such an amendment brought to Rule 25 (a) in our opinion is not repugnant or inconsistent with any other laws time being in force. Further, the Government, in http://www.judis.nic.in 46/49 wp 16280 of 2005 their wisdom, have thought it fit to give preference to the in-service candidates who have already put in five years of experience prior to their recruitment to the post of Sub-Inspector. Above all, the Government thought it fit that those in-service candidates are already aged when compared to the directly recruited candidates and therefore, if they are given preference in fixation of seniority, they could get the promotional prospects before their retirement, otherwise they could not. In such view of the matter, we are of the view that the amendments brought to Rule 24 (e) of the Special Rules for Tamil Nadu Special Police Subordinate Service is proper and we do not see any reason to interfere with the same.
33. In the light of the above, we dispose of these writ petitions/writ appeal with the following observation:-
(i) The directly recruited 500 candidates are ordered to be placed first in the seniority list as has been directed by the Division Bench of this Court in the Judgment dated 11.03.2015 passed in WA Nos. 1599 and 1600 of 2014 and WP No. 2570 of 2015, which was also affirmed by the Honourable Supreme Court in SLP Civil No. 15710 to 15712 of 2015 dated 09.02.2017.
(ii) The 267 in-service candidates are ordered to be placed next in the seniority list below the 500 directly recruited candidates mentioned in clause (i) above
(iii) The 600 directly recruited candidates are ordered to be placed below the 267 in-service candidates mentioned in clause (ii) above in the order of seniority
(iv) W.A. No. 484 of 2018 stands dismissed by confirming the order dated 27.06.2017 passed by the learned single Judge in WP No. 4355 of 2017 http://www.judis.nic.in 47/49 wp 16280 of 2005
(v) The official respondents are directed to prepare the seniority list as directed above and proceed further in accordance with law. Such an exercise is directed to be concluded within a period of three months from the date of receipt of a copy of this order.
(vi) There shall be no order as to costs. Consequently, all the connected miscellaneous petitions are closed.
(R.P.S.J) (C.S.N.J.,)
08.01.2020
Index : Yes
Speaking Order : Yes
rsh
To
1. Government of Tamil Nadu
represented by Secretary to Government
Home Department
Fort St. George, Chennai - 600 009
2. The Director General of Police
Tamil Nadu
Chennai - 600 004
http://www.judis.nic.in
48/49
wp 16280 of 2005
R. SUBBIAH, J
and
C. SARAVANAN, J
rsh
Pre-delivery Common Order in
Writ Petition No. 16280 of 2005
etc., batch
08.01.2020
http://www.judis.nic.in
49/49