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2006 DIGILAW 3500 (MAD)

R. Gunasekaran & Others v. S. Jayamani & Others

2006-12-16

M.E.N.PATRUDU

body2006
Judgment :- (Writs Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus directing the Respondents to consider the petitioners names for promotion as Inspector of Police (Category I) for the year 2004-2005 taking into account their promotion as Sub-Inspector of Police for the year 1994.) Common Order: Since the issues involved in all these writ petitions are identical, common order is passed. 2. The prayer of the petitioners is to direct the Respondents to consider their names for promotion as Inspector of Police (Category I) for the year 2004-2005 taking into account their promotion as Sub-Inspector of Police for the year 1994. 3. The facts which are necessary for the disposal of these writs are:- The petitioners joined the State Police Service having recruited as Police Constables and were promoted thereafter as Head Constables and subsequently promoted as Sub-Inspectors of Police. 4. The contention of the petitioners is that they were promoted as Sub-Inspectors of Police in the vacancies of the year 1994, though the date of their promotion is 12.11.1997 and their seniority is to be considered from the year 1994. 5. According to the petitioners as per the special Rules for Tamil Nadu Police Subordinate Service, selection to the post of Sub-Inspectors of Police is every year but there was no selection from the year 1986 due to administrative delay and other litigation and all the petitioners are fit to be considered for promotion to the post of Sub-Inspector of Police even in the year 1986-87 itself, but since the Range Promotion Board was not convened due to litigation, the petitioners who were fit for promotion long back have to wait till 1995 to receive the call for selection as Sub-Inspectors of police and ultimately they received a call in the year 1995 for filling the vacancies of the year 1994. According to the petitioners in March 1995 the petitioners were called for selection to the post of Sub-Inspectors and the selection continued and the petitioners were asked to various tests viz., written test, drill test, viva voce test and the appointing authority viz., the Deputy Inspector General of Police published the selection list on 15.11.1996 and thereafter they have been sent for institutional training were appointed in the year 1997, after completion of the said training. 6. 6. It is also stated that they have submitted their representations to consider their seniority from the year 1994, as they were recruited for the vacancies arisen in the year 1994. The Deputy Inspector General of Police recommended for the same and the said recommendations were sent to the Government in August 2002, but still no orders have been passed. In the meanwhile the Director General of Police Office has taken steps to finalise inter seniority list on the basis of those who have been appointed up to 31.12.1996 and in the said process the names of the petitioners is likely to be deleted. Hence the petitioners approached this Court for suitable direction. 7. The counter affidavit of the Respondents disclose that the State Administrative Tribunal in O.A.No.1565 of 1995 passed an order while disposing of batch of 102 cases, wherein it was observed that "those Head Constables who were acting as temporary Sub-Inspectors of Police for 6 years and above as on the date of impugned memorandum i.e. 21.2.1995 without any black mark or punishment should be regularised as Sub-Inspectors of Police and those Head Constables who have acted as Sub-Inspectors of Police for 3 years and more as on the date of impugned order i.e. 21.2.1995 and eligible persons who are seniors to them would be screened and there will be no promotion tests for them and other cases should be called upon to participate in the promotion tests to be conducted as per the guidelines prescribed in the orders of the Tamil Nadu Administrative Tribunal." 8. In para 7 of the counter affidavit it is stated that the Range Promotion Boards were convened on 26.10.1996, 1.11.1996 and 2.11.1996 for selection of Head Constables fit for promotion as Sub-Inspectors of Police of the vacancies arisen in the year 1994 and written test, drill test and viva voce test were conducted. 9. The contention of the Respondents is that as per Rule 18(e) of Special Rules for Tamil Nadu Police Subordinate Service the Head Constables selected by the Range Promotion Boards will be entitled for promotion to next higher rank of Sub-Inspector of Police only on completion of prescribed training. 9. The contention of the Respondents is that as per Rule 18(e) of Special Rules for Tamil Nadu Police Subordinate Service the Head Constables selected by the Range Promotion Boards will be entitled for promotion to next higher rank of Sub-Inspector of Police only on completion of prescribed training. Therefore, the Head Constables so selected have attended the pre-promotional institutional training from 21.4.1997 and completed the practical training in districts on 11.11.1997 and therefore, the Head Constables selected during the year 1996 have become eligible for promotion as Sub-Inspectors with effect from 12.11.1997. 10. Heard Ms.G.Bala Daisy, learned counsel appearing for the petitioners. 11. The learned counsel for the petitioners submitted that the appointing authority viz., the Deputy Inspector General of Police published a selection list on 15.11.1996 and thereafter the petitioners were sent for institutional training. When the selection list was published on 15.11.1996 and when it was notified that the petitioners were appointed on selection and on promotion as Sub-Inspectors of police, the same date has to be taken into consideration, even though they were sent for institutional and other training as the said training is in the capacity of Sub-Inspector of Police and not in the capacity of Head Constables. After successful training if the petitioners are given postings that order cannot be taken into consideration as appointment order because their initial selection and publication of the promotional list alone is the date of selection and appointment. 12. In the instant case, the grievance of the petitioners is that they were called for written test, drill test and viva voce test and all other tests, after the orders of the Tribunal and that the petitioners are not challenging the validity of Rule 18(e) of the Special Rules for Tamil Nadu Police Subordinate Service. 13. But this Court is of the opinion that when a person has been selected by way of promotion to the next higher rank and his selection was declared it is the clear case that he is promoted and thereafter even if he was asked to undergo training the date of selection and promotion is to be taken into consideration but not the date on which he had completed the prescribed training. If a person is found unfit to be posted in the promotional post after the training, necessary orders can be issued cancelling his promotion. If a person is found unfit to be posted in the promotional post after the training, necessary orders can be issued cancelling his promotion. But this aspect has to be considered by the Respondents and it is only suggestion. It is stated that if a person directly recruited as the Sub-Inspector of Police he is also subjected to undergo the in service training and during the in service training, he will be eligible to draw all emoluments for the said post. It is stated that the Department is considering the date of the original selection of such direct recruited persons and not the date of completion of training. 14. If it is so, there is discrimination between the promotes and the direct recruits. Such a discrimination should not be allowed to be continued by the statute, because it is violation of Article 14 of the Constitution of India. Equality before Law and Equal Justice is mandate of the Constitution and all the Rules including the Special Rules for Tamil Nadu Police Subordinate Service must be in tune with the provisions of the Constitution of India and they are not above the Constitution. Bye-law is not above law, law is always supreme and bye-law is for the internal administration of the Department. These facts must be considered by the Respondents and the truth or otherwise must be verified if necessary by making suitable amendments to the Special Rules, the equality must be maintained. 15. However, this Court would like to clarify that the promotion of the Sub-Inspector of police to the post of Inspector of police depends on the Special Rules of the Tamil Nadu Police Subordinate Service and it appears that it is based on merit and ability and seniority would be considered only on merit and ability which are approximately equal. This has to be followed strictly by the Respondents and merit and ability alone should be given priority and the seniority is the secondary. 16. Further the cases of petitioners cannot be considered from the year of vacancy i.e. 1994 and it can be considered from the date of the order of promotion. I would like to clarify that even the date of initial selection has no criteria. Date of posting is the only criteria and the proceedings date of promotion alone has to be taken into consideration. 17. I would like to clarify that even the date of initial selection has no criteria. Date of posting is the only criteria and the proceedings date of promotion alone has to be taken into consideration. 17. In the circumstances stated above, this Court is of the considered opinion that in case if the petitioners are called for selection to fill the vacancies that arisen in the year 1994 and when their selection was commenced in 1995 and they were selected after subjecting to written test, drill test and viva voce test etc., the petitioners normally and legitimately can expect the postings from the date of their appointment. If there is delay in this process the petitioners should not suffer. 18. The forcible contention of the learned counsel for the petitioners is that the Deputy Inspector General of Police has sent recommendations way back on 8.8.2002 and still orders have not been passed by the Head of the Department i.e. Deputy Inspector General of Police, who is the second respondent. 19. Therefore the second Respondent is specifically directed to examine this issue immediately and pass necessary orders strictly in accordance with the Rules and give all genuine reliefs to the petitioners who are none other than his own men serving the State for the maintenance of Law and Order to prevent the offences to detect the crimes and discharge duties for the peaceful living of the citizen. The Respondents have to consider all these aspects however, strictly as per rule 18 of the Rules and dispose of the grievance of the petitioners preferably within 30 days from the date of receipt of copy of this order. 20. The writ petitions are disposed of with the above directions. No costs. Consequently, W.P.M.P.Nos.638, 1203, 4109, 5653, 5654,10631, 10647, 11548 of 2005 are closed.