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2008 DIGILAW 1275 (MAD)

Abbas v. Commissioner of Police, Madurai

2008-04-15

R.BANUMATHI, S.MANIKUMAR

body2008
JUDGMENT S. MANIKUMAR, J. The correctness of the order rejecting the appellant's case for appointment as sub Inspector of Police as against 20% of the vacancies earmarked for Head Constables with degree qualification, is challenged in this appeal. 2. Facts in brief are as follows: The petitioner was appointed as Grade II Police Constable on 20.5.1988 and was promoted as Head Constable on 28.10.2004. As per G.O. Ms. No. 1054 Home (Police III) Department, dated 13.7.1995, 20% of the total number of vacancies were earmarked for direct recruitment from candidates working as Police Constables and Head Constables in the police Department. The appellant submitted an application on 31.7.2006 by proceedings in C.C. A1/40048/2006, dated 21.8.2006, the Commissioner of Police, Madurai, the first respondent, declined to forward the application of the petitioner on the ground that he had been awarded with a punishment of postponement of increment for a period of one year without cumulative effect within the check period of five years between 1.7.2001 and 1.7.2006, as per the norms fixed by the Director General of Police, Law and Order, Chennai, the second respondent herein. 3. Aggrieved by the same, the petitioner preferred W.P. (MD) No. 8674 of 2006 for a certiorarified mandamus to quash the said order and consequently for a direction to the first respondent to forward the petitioner's application, dated 31.7.2606 to the second respondent for the post of Sub Inspector of Police. By order dated 20.9.2006, this Court directed the first respondent to forward the said application. On consideration of the application, the second respondent by his proceedings dated 4.12.2006 rejected the petitioner's candidature on/the ground that he had major punishment to his credit. The said order was impugned in the writ petition. It was contended that the punishment of postponement of increment for a period of one year without cumulative effect was subsequently modified as “Black Mark” by the Director General of Police, Chennai, the second respondent on 13.2.2007 and therefore, applying the Doctrine of Merger, it should be construed that on the crucial date, i. e., 4.12.2006, the appellant was inflicted only with a punishment of “Black Mark”, which is not a disqualification and therefore, by applying the norms prescribed in G.O. Ms. No. 1054, Home (Police III) Department, dated 13.7.1995, the appellant ought to have been recruited as Sub Inspector of Police. 4. No. 1054, Home (Police III) Department, dated 13.7.1995, the appellant ought to have been recruited as Sub Inspector of Police. 4. Observing that the doctrine of merger would be applicable only when there is an appeal or revision as provided under the statute and any modification of the penalty in a mercy petition submitted by the petitioner will not fall under the statutory provision, the learned single Judge declined to accept the contention and accordingly dismissed the writ petition. However, having regard to the fact that as on the date of disposal of the writ petition, the punishment of “Black Mark” would not be an impediment, the learned single Judge has made it clear, in future, if any such recruitment process is undertaken by the second respondent, the case of the petitioner could be considered. Being aggrieved by the dismissal of the writ petition, the appellant has filed this present appeal. 5. Referring, to the contents of the application form, Mr. Sadiq Raja, learned counsel for the appellant submitted that as per the norms prescribed for direct recruitment for filling up of 20% service quota three conditions have to be satisfied, as on 1.7.2006, (i) the appellant should have completed a degree (ii) the applicant ought not to have completed 45 years of age, and (iii) the applicant ought to have completed 5 years of service in the department and there should not be any major punishment prior to five years of consideration of the application. 6. Referring to Rule 2(c) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, learned counsel for the appellant submitted that as the punishment of postponement of increment for a period of one year without cumulative effect is only a minor penalty, the appellant ought to have been considered for appointment. He further submitted that modification of the above punishment into one of “Black Mark” was made by the Director General of Police, Chennai, in exercise of his statutory powers under Section 15(A)(1)(ii) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, enabling the said authority to confirm, modify, reduce, enhance, or set aside the order of punishment and therefore, the observation of the learned single Judge that the doctrine of merger would not be applicable to the case of the appellant and that the modification of penalty was done purely out of sympathy is erroneous. 7. 7. Learned counsel for the appellant further submitted that the rejection of the appellant's application quoting P.R. No. 107 of 2006, which was issued subsequent to the cut off date i. e., 1.7.2006 is without application of mind, as the disciplinary enquiry was never under contemplation, when his application was forwarded to the second respondent and therefore, the same cannot put against the appellant. 8. Per contra, Mr. Pala. Ramasamy, learned Special Government Pleader appearing on behalf of the respondents submitted that the appellant was issued with a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 in P.R. No. 107 of 2006 and that on enquiry, he was awarded with a punishment of “Deferred Black Mark” for a period of six months. Besides, he was also awarded a punishment of postponement of increment for a period of one year without cumulative effect by the Assistant Commissioner of Police Law and Order in P.R. No. 213 of 2005 on 14.9.2005 which falls within the check period of five years as per G.O. Ms. No. 1054, Home (Police III) Department, dated 13.7.1995 and therefore, the appellant is not eligible for selection as Sub Inspector of Police under 20% departmental quota. He further submitted that even though the said punishment of postponement of increment was modified later on as “Black Mark”, on 13.2.2007 by the Director General of Police, Chennai, as per the norms prescribed in the said Government Order, he was undergoing the penalty on the crucial date and therefore, he was not qualified to be considered for direct recruitment He further submitted that the “Doctrine of Merger” would not be applicable to the present case and therefore, there is no need to interfere with the order made in the writ petition. 9. Heard the learned counsel appearing for the parties and perused the materials available on record. 10. The Government in G.O. Ms. No. 1054- Home (Police III) Department, dated 13.7.1995 have issued orders prescribing certain norms for special recruitment to the post of Sub-Inspector of Police under direct recruitment quota and it reads as follows: “At Present, selection to the post of Sup Inspectors of Police Men (direct recruitment) is conducted by the Tamil Nadu Uniformed Services Recruitment Board. No. 1054- Home (Police III) Department, dated 13.7.1995 have issued orders prescribing certain norms for special recruitment to the post of Sub-Inspector of Police under direct recruitment quota and it reads as follows: “At Present, selection to the post of Sup 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 Constables 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 18.1.1995 in O.A. No. 1368 of 1994 (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 five 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 quota 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 Tamil Nadu Special Police Branch in Category-II and III. The direct recruitment quota of Sub-Inspector of Police will be filled 80% by from open market and 20% from serving Police personnel in all the three categories. 3. The recruitment shall be made by the Tamil Nadu 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 Tamil Nadu Special Police who are graduates and who have completed five 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 five years preceeding the date of notification of selection. 4. The Tamil Nadu 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 that year. 5. 4. The Tamil Nadu 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 that year. 5. The Director General of Police is requested to send necessary draft amendments to Special Rules for Tamil Nadu Police Subordinate Services and the Tamil Nadu Special Police Subordinate Services immediately. (By order of the Governor) P.V. Rajaraman, Secretary to Government.” 11. The Director General of Police, Chennai, the second respondent, in his Memorandum in R.C. No. 143528/Rect.2(1)/2008, dated 20.7.2006 and 26.7.2006 had issued instructions to all the Commissioners of Police in Cities, all Superintendents of Police in Districts, all Commandants in Battalions and called for the lists of eligible constables and Head Constables for recruitment as Sub-Inspectors of Police (Men and Women) under 20% departmental quota. As per the instructions, the norms for serving police personnel for this Section are as follows: a) Age: should not have completed 45 years as on 1.7.2006 b) Educational qualification: Degree from a recognised University should be a graduate as on 1.7.2006. c) Service : should have completed 5 years in the police Department as on 1.7.2006. d) Record of Service: The candidates should not have any punishments under the following categories for the past five years as on 1.7.2006. i) Reduction in rank; (ii) Reduction in time, scale of pay, and (iii) Postponement of increment. Punishments such as black mark, reprimand and censure do not preclude a candidate for being considered to the post of Sub Inspector of Police. 12. i) Reduction in rank; (ii) Reduction in time, scale of pay, and (iii) Postponement of increment. Punishments such as black mark, reprimand and censure do not preclude a candidate for being considered to the post of Sub Inspector of Police. 12. Perusal of the counter affidavit filed by the respondents discloses that the appellant was issued with a charge memo in P.R. No. 213 of 2003 under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 on 14.9.2005 for the following delinquency: “Gross neglect of duty in having failed to attend the duty at Aruppukottai road check post on 7.4.2005 at 17.10 hrs and also absent for the duty on 7.4.2005 at 17.10 hrs when the Sub-Inspector of Police, Control Room has called for the details of the vehicles check particulars through VHF as per the orders of the non-peak hours Assistant Commissioner of Police, Thilagarathidal L & O Range,Madurai City, while he was deputed for Arupukkottai Road Check Post Duty on 7.4.2005 between 14.00 hrs and 22.00 hrs.” 13. For the above said delinquency, the Assistant Commissioner of Police, Thilagarthidal Law and Order Range, Madurai City, by order dated 26.9.2005 has awarded a punishment of postponement of increment without cumulative effect. Therefore, it is clear that as on the crucial date, i. e., 1.7.2006, the appellant was undergoing the penalty within the check period of five years preceeding the date of notification of selection as per the norms in G.O. Ms. No. 1054, Home (Police III) Department, dated 13.7.1995. Though the appellant had received orders on 3.10.2005, he had not submitted any statutory appeal and therefore, he was instructed to submit a mercy petition to the Director General of Police, the second respondent herein. While requesting the said authority to cancel the punishment, the appellant has stated as follows: 14. On consideration of the said petition with the connected records, the second respondent by his proceedings dated 13.2.2007 has modified the penalty of postponement of increment into one of Black Mark. Admittedly, the appellant has not preferred the statutory appeal as per the rules within the prescribed time and therefore, his belated petition has been treated only as a mercy petition and orders have been passed modifying the penalty. 15. Admittedly, the appellant has not preferred the statutory appeal as per the rules within the prescribed time and therefore, his belated petition has been treated only as a mercy petition and orders have been passed modifying the penalty. 15. It should be borne in mind that the direction issued by the Director General of Police, Chennai is only for direct recruitment to the post of Sub-Inspector of Police from out of the departmental candidates, i. e., Constables and Head Constables, against 20% seats earmarked for them, as per the norms prescribed in G.O. Ms. No. 1054 Home (Police III) Department, dated 13.7.1995, and not for promotion. The cut off date is 1.7.2006. The contention that the punishment of postponement of increment has been modified as “Black Mark” on 13.2.2007 and that it has to date back to 1.7.2006, i. e., the cut off date is totally misconceived and such contention could be an acceptable argument if the posts are to be filled up by promotion from among the eligible Head Constables, which is the feeder category. The selection to the post of Sub-Inspector of Police by the process of direct recruitment can be made by judging the eligibility of the candidates with reference to the cut off date and not later. The doctrine of merger is not applicable in the case of direct recruitment and therefore, there is no need to advert to the same. 16. In Ashok Kumar Sharma and Others v. Chander Shekhar and Another Ashok Kumar Sharma and Others v. Chander Shekhar and Another Ashok Kumar Sharma and Others v. Chander Shekhar and Another (1997) 4 SCC 18 : 1997-I-LLJ-1160 at para 10, the Supreme Court held that at p. 1163 of LLLJ: “ 6. …The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind the proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied, just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan Rekha Chaturvedi v. University of Rajasthan Rekha Chaturvedi v. University of Rajasthan (1893) 3 SCC 168). 17. In yet another decision, State of Uttar Pradesh v. Vijayakumar Misra , 2002 AIR SCW 2608, at para 8 of the judgment, the Apex Court held that, “This position is fairly well settled that when a act of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post. It is relevant to note here that in the rules or in the advertisement no power was vested in any authority to make any relaxation relating to the prescribed qualifications for the post. Therefore, the case of a candidate who did not come within the zone of consideration for the post could not be compared with a candidate who possessed the prescribed qualifications and was considered and appointed to the post.” 18. The fact remains that on the cut off date, i. e., 1.7.2006, the appellant was undergoing the punishment and therefore, he has failed to satisfy the eligibility criteria for being considered to the post of Sub Inspector of Police as against 20% of departmental quota. The fact remains that on the cut off date, i. e., 1.7.2006, the appellant was undergoing the punishment and therefore, he has failed to satisfy the eligibility criteria for being considered to the post of Sub Inspector of Police as against 20% of departmental quota. However, we are of the considered view that the Disciplinary proceedings initiated in P.R. No. 107 of 2006 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, dated 10.7.2006, ought not to have been put against the appellant as it was initiated subsequent to the cut off date. 19. We do not find any manifest error in the impugned order warranting interference. As rightly observed by the learned single Judge as the disqualification has now been wiped out by an order of modification, if any direct recruitment process is undertaken by the second respondent in future, the punishment of “Black Mark” would not stand in the way of the appellant for being considered for appointment as Sub-Inspector of Police, against 20% vacancies. We accordingly confirm the order made in the writ petition. 20. The writ appeal is dismissed. No costs. Consequently, M.P. (MD) No. 1 of 2008 is also dismissed.