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2008 DIGILAW 2514 (MAD)

K. Pandurangan v. The Commissioner of Police

2008-07-18

S.NAGAMUTHU

body2008
Judgment Though the miscellaneous petition is listed today, by consent, the writ petition itself is taken up for disposal. 2. The petitioner is working as a Head Constable in Chennai City. The next avenue of promotion for Head Constable is the post of Sub Inspector of Police. The Director General of Police, Chennai in his proceedings in Rc.No.276060/NGB IV(1)/2004 dated 03.01.2005 directed the respondent herein to draw the list of Head Constables fit for promotion as Sub-Inspectors of Police (only men) as per Rule 3(d) of Special Rules, who satisfy the following conditions: (i) Must have good working knowledge of English. (ii) Must not have completed 53 years of age on the first day of July of the year for which the selection for promotion of Head Constables as Sub Inspectors is held. (iii) Must have completed a total service of seven years and must have served as Head Constable whether permanent or officiating for a period of not less than four years on the first day of July of the year. 3. The memorandum further states that "the eligible Head Constables have to be admitted to the Written Test which will be held at a central place in the Range. The Range Promotion Board shall thereafter hold a viva-voce examination including a Drill test for those who are successful at the written test, select the men for training and send the list to the respective Deputy Inspector-General of Police/Commissioner of Police, concerned for approval." 4. In the same memorandum, the Director General of Police prescribed the programme for conducting promotion tests and drawal of "C" list as follows: Publication of list of eligible candidates 02.02.2005 Written Test at Range Headquarters 07.02.2005 Drill Test at Range Headquarters 09.02.2005 Viva-voce at Range Headquarters 10.02.2005 Preparation of Recommendation Rolls by the RPB 14.02.2005 Finalisation of Select Lists by the Range DIGs/COPs 16.02.2005 Publication of list of candidates selected for pre-promotional training 18.02.2005 5. The memorandum further prescribes the mode of allotting marks for the promotion tests as follows: I. Written Test 30 II. Drill Test 10 III. Viva-Voce 10 IV. Past Performance 50 a) 30 marks for assessment of PFs can be given based on the grading in ACRs viz outstanding, very good, good, above average and average. The memorandum further prescribes the mode of allotting marks for the promotion tests as follows: I. Written Test 30 II. Drill Test 10 III. Viva-Voce 10 IV. Past Performance 50 a) 30 marks for assessment of PFs can be given based on the grading in ACRs viz outstanding, very good, good, above average and average. Accordingly, marks can be given as follows, for the ACRs from the date of promotion as HC and till the year in which Range Promotion Board is conducted. Outstanding 10 Very good 8 Good 6 Satisfactory/Above Average 4 Average 2 .(i) Then the average marks can be assessed from total ACRs. .(ii) The average marks obtained may be multiplied by 3(three) and allotted to the individual. Any rate of the total mark should not be exceed 30 (Thirty) marks for ACT. .(b) for clean D.sheet (the period from the date of promotion as HC alone should be taken into account. For every minor punishment one mark should be deducted and for every major punishment 2 marks should be deducted, all subject to maximum of 10) 10 .(c) Rewards (up to 100 =5 marks; 101 and above = 10 marks) 10 Total 100 ----" 6. In the counter no mention has been made as to whether publication of list of eligible candidates was made on 02.02.2005. But I presume, as per Section 114(g) of the Evidence Act that the publication of the eligible candidates was made on 02.02.2005 and the name of the petitioner was also included. 7. It has to be remembered at this juncture that as per the programme, written test should be conducted on 07.02.2005, Drill Test on 09.02.2005 and Viva-voce on 10.02.2005. Accordingly, the Range Promotion Board conducted the written examination on 07.02.2005, Drill Test on 09.02.2005 and Viva-Voce on 10.02.2005. Curiously, the respondent did not allow all the eligible candidates found in the list to participate in the said examination. According to the petitioner, only 1520 candidates were allowed to participate and others were told that due to administrative difficulties, they could not be called for the said examination and they would be called for the second phase of examination. The petitioner was one among them who were not called for the examination. As per the programme, the finalisation of the list should have been done on 16.02.2005. The petitioner was one among them who were not called for the examination. As per the programme, the finalisation of the list should have been done on 16.02.2005. Though the examination was conducted on 07.02.2005, 09.02.2005 and 10.02.2005, the Promotion Board did not finalise the select list of candidates out of the candidates who participated in that examination. (For convenience sake let me call this as the first phase of examination). 8. The Promotion Board conducted the second phase of Written Test on 20.03.2005, Drill Test on 23.03.2005 and Viva-Voce on 24.03.2005. The Board allowed those candidates who were not earlier allowed to participate in the first phase to participate in the second phase of examination. According to the petitioner, about 1151 were allowed to participate in the said examination. Immediately on completing the above three tests, the Board did not finalise the select list out these candidates also. 9. The Commissioner by his proceedings in Rc.No.Estt.3(1)/81/17748/05 dated 23.05.2005 finalised the select list of candidates. The list contains as many as 152 selected candidates. But, the petitioner was not selected. Challenging the non-selection, the petitioner has come forward with this writ petition. 10. Heard Mr. R. Thiagarajan, the learned Senior Counsel appearing for the petitioner and Mr.V.Arun, the learned Additional Government Pleader appearing for the respondent. 11. The foremost contention of the learned Senior Counsel appearing for the petitioner is that though in the programme it is prescribed that there should be only one phase of examination, the Board had split up the same into two phases. The learned Senior Counsel would submit that though it is his grievance that such kind of splitting should not be done, he does not base his argument on the said footing. He would submit that having conducted such examinations in two phases, the Board should have adopted one and the same cut off mark for all the candidates who participated either in the first phase or in the second phase but instead, admittedly in respect of candidates who participated in the first phase of examination, the cut off mark has been fixed at 41.5, whereas in respect of the candidates who participated in the second phase, the cut off mark has been fixed at 680. Thus, according to the learned Senior Counsel, there is discrimination and thus the procedure adopted is highly illegal and violative of Article 14 of the Constitution of India. Thus, according to the learned Senior Counsel, there is discrimination and thus the procedure adopted is highly illegal and violative of Article 14 of the Constitution of India. .12. The next contention of the learned Senior Counsel is that the petitioner should have been awarded 10 marks under the caption "Default Sheet" and 24 marks for "ACR" instead, the petitioner has been awarded 8 marks for "Default Sheet" and 6 marks for ."ACR". If the petitioner is awarded 10 marks for "D.Sheet" and 24 marks for "ACR", the petitioners total marks would come to 60, which would be far above the cut off marks, viz., 41.5 fixed for the first phase. 13. The learned Additional Government Pleader would vehemently oppose the writ petition. He would submit that if it is the grievance of the petitioner that it was wrong on the part of the Commissioner of Police to split up the examination into two phases, he should have very well challenged the same either by making a representation or by filing an appropriate proceeding before this Court. Having failed to do so, according to the learned Additional Government Pleader, it is not open for the petitioner to raise the same as a point in support of his case. 14. The next contention of the learned Additional Government Pleader is that even if it is admitted that the petitioner is eligible for 60 marks, the petitioner would not be within the cut off marks of 62.80 fixed for the second phase of examination and so, the rejection of the petitioner is correct. Since two sets of examinations were conducted on two different dates in two phases, the Board thought it fit to fix two different cut off marks and there is nothing illegal in the same, the learned Additional Government Pleader contended. 15. In conclusion, he would submit that there is no violation of Article 14 of the Constitution of India and so the writ petition is liable to be dismissed. 16. I have considered the rival submissions. .17. A perusal of the proceedings of the Director General of Police would go a long way to show that the programme was to conduct the examination only in one phase. But, according to the learned Additional Government Pleader, the examination had to be conducted in two phases because of the rearrangement among the candidates to their pre-existing seniority. .17. A perusal of the proceedings of the Director General of Police would go a long way to show that the programme was to conduct the examination only in one phase. But, according to the learned Additional Government Pleader, the examination had to be conducted in two phases because of the rearrangement among the candidates to their pre-existing seniority. But, this contention cannot be accepted. If it is the case of the respondent that the above two phases of examinations should be construed as two different process of selection so as to enable the Board to have two different cut off marks, then the candidates who were unsuccessful in the first phase should have been allowed to participate in the second phase. The very fact that the list was not finalised immediately as per the programme on the basis of the first phase of examination and also the fact that only a common list of selected candidates was finalised would go to show that though examination was conducted in two different phases, it was only under one single common programme. When it is so definite that the process was one and the same though the examinations were conducted in two phases, it is highly arbitrary on the part of the respondent to have fixed two different cut off marks that too with vast range of difference. Admittedly, in respect of the candidates who participated in the first phase, the cut off mark is 41.5, whereas the cut off mark in respect of the candidates who participated in the second phase is 680. Thus the difference is more than 20 marks. In my considered opinion, this is highly arbitrary, unreasonable, illegal and thus, violative of Article 14 of the Constitution of India. 18. Having come to the above conclusion it would have been proper for this Court to set aside the entire selection process. But, I do not propose to do so for the reason that the selected candidates numbering about 151 are already undergoing training and they are not before me as parties. Further, the candidates who are similarly placed like the petitioner who have been affected by this wrong procedure of selection adopted by the Board are not before this Court. But, I do not propose to do so for the reason that the selected candidates numbering about 151 are already undergoing training and they are not before me as parties. Further, the candidates who are similarly placed like the petitioner who have been affected by this wrong procedure of selection adopted by the Board are not before this Court. In these peculiar circumstances of the case, at this length of time, I do not deem it appropriate to disturb the list already finalised and the candidates already undergoing training. I earnestly believe that the respondent, atleast in future, would avoid this kind of discrimination in the matter of selection. .19. The learned Additional Government Pleader would submit that since the petitioner was arrested in connection with a criminal case by the Kerala Police, he could not appear for the first phase of examination. It is stated in the counter filed by the respondent as follows: ."8. I respectfully submit that with regard to averments made in para-2, the petitioner, though eligible to participate in the selection process to select a panel of Head Constables fit for promotion as Sub-Inspectors of Police, did not participate in the test because he was arrested in a Criminal Case u/s 365, 368 & 34 IPC in Crime No.41/95 of Vechoochira Police Station in Kerala State for his arrest and involvement in the above Criminal Case, a charge in PR No.102/PR(S)/2000, u/r 3(b) dated 20.02.05 was also served on him." 20. The learned Senior Counsel would submit that the only ground stated in paragraph 8 of the counter for not promoting the petitioner to participate in the first phase of examination is factually incorrect. According to the learned Senior Counsel, the petitioner surrendered before the Court concerned on 28.07.2006 and when the first phase of examinations were on, the petitioner was very much on duty. 121. Yet another contention of the learned Additional Government Pleader is that since there was a charge pending against the petitioner, he was not allowed to participate in the first phase. .22. 121. Yet another contention of the learned Additional Government Pleader is that since there was a charge pending against the petitioner, he was not allowed to participate in the first phase. .22. It is brought to my notice by the learned Senior Counsel that long prior to the selection process, the charge memo based on the involvement of the petitioner in the alleged crime leading to registration of criminal case by the Kerela State police was stayed by the Tamil Nadu Administrative Tribunal and thus, the same should not have been quoted against the petitioner. I accept the said contention of the learned Senior Counsel. Thus there was no valid reason for the respondent in not calling the petitioner to participate in the first phase of examination. The only reason stated in the counter for non-selection is that the petitioner did not secure the cut off marks and no other reason whatsoever has been stated. The relevant paragraph reads as follows: ."15. ...the only cause for the non-selection of the petitioner is that he failed to secure cut off marks in all the tests that are conducted on 20.03.2005, 23.03.2005 to 24.03.2005." .23. Now, the question is whether he would be eligible for getting more than 41.5 marks, which is the lowest cut off mark fixed for the first phase. The learned Additional Government Pleader would submit that if the petitioner gets more than 62.80 marks, which is the cut off mark fixed for the second phase, then his case could be considered. But, according to the learned Additional Government Pleader, since the petitioner did not participate in the first phase, the cut off mark fixed for the first phase shall not be made applicable to the petitioner. I am constrained to say that I am not in a position to accept such contention of the learned Additional Government Pleader for the simple reason that I have already concluded that there should have been a common cut off mark fixed for all the candidates who participated in the selection process whether through first phase of examination or through second phase of examination. Going by .the cut off mark fixed at 41.5, now we have to analyse as to whether the petitioner gets more than that or not. 124. According to the counter filed by the respondent, the petitioner secured the following marks: 1. Written 12. 50 2. Viva-Voce 3. Going by .the cut off mark fixed at 41.5, now we have to analyse as to whether the petitioner gets more than that or not. 124. According to the counter filed by the respondent, the petitioner secured the following marks: 1. Written 12. 50 2. Viva-Voce 3. Drill 4.00 4.50 4. Reward 5.00 5. DSheet 8.00 6. ACR 6.00 Total 40.00 25. If I find that the petitioner is eligible for 40 marks as it is stated in the counter, then the petitioner will have no case. But, the learned Senior Counsel would submit that the petitioner would be eligible for 10 marks under the caption "Default Sheet" and 24 marks for "ACR". The learned Senior Counsel would submit that as per the memorandum dated 03.01.2005 of the Director General of Police, for a clean "Default Sheet", the candidate shall be eligible for 10 marks. In this case, at page 111 of the typed set of papers the petitioner has filed a copy of the DSheet which shows that the petitioner had no punishment either major or minor. It shows NIL. When that be so, according to the programme, the petitioner should have been allotted 10 marks for DSheet. In the counter, no reason whatsoever has been stated as to why he was not given 10 marks instead he was given 8 marks. In my considered opinion, the petitioner should have been given 10 marks under this caption. 26. In respect of "ACR", as per the programme, for very good performance a candidate shall be eligible for 8 marks per year. As per the programme, the average marks obtained should be multiplied by 3 and allotted to the individual. At any rate, the total mark should not exceed 30. In this case, as found from the typed set of papers, for all the five years during the past, the petitioners general competence in the post held during the period of review was "Very Good". When that be the case, as per the calculation made for five years, the average mark shall be: 5 X 8 = 40/5 = 8 This average mark of 8 should be multiplied by 3 as per the programme. If it is done, it comes to 24 out of 30. Thus, as rightly pointed out by the learned Senior Counsel, the petitioner should have been awarded 24 marks for "ACR". If it is done, it comes to 24 out of 30. Thus, as rightly pointed out by the learned Senior Counsel, the petitioner should have been awarded 24 marks for "ACR". If that is given, the petitioners total mark shall come to 60. The learned Additional Government Pleader is not in a position to explain to this Court as to why the petitioner was awarded only 6 marks for ACR. The counter is so silent about that. Therefore, having regard to all the above facts, I have to hold that the petitioner is eligible for 60 marks. Since the minimum cut off mark for the first phase of examination is only 45. , the petitioner is eligible to be included in the final selection list. Thus I find every force in the argument of the learned Senior Counsel for the petitioner. 27. It may be true that there are several other candidates who participated in the second phase of examination who would have got more than 41.5 marks, but unfortunately, they are not in the selection list. Similarly, some persons who would not have been selected if a common cut off mark had been fixed have been selected and they are undergoing training. Thus in my firm opinion, there are lot of anomalies. But, at this length of time as I have already stated, I am not able to cure such anomalies gms except allowing the writ petition directing the respondent to redress the grievance of the petitioner alone by including him in the list of selected candidates. 28. In the result, the writ petition is allowed and the respondent is directed to include the petitioners name in the "C" list fit for promotion to the post of Sub Inspector of Police (Taluk) for the year 2004 and forthwith send him for training. I am told that in pursuance of an interim order granted by this Court, one post is kept vacant and therefore, there shall be no impediment for the respondent to immediately promote the petitioner as against the said vacancy. The respondent is directed to issue consequential proceedings within a period of six weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.