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2014 DIGILAW 1285 (MAD)

C. Kumaran v. Director General of Police, Chennai

2014-06-12

M.SATHYANARAYANAN, N.PAUL VASANTHAKUMAR

body2014
Judgment : N. Paul Vasanthkumar, J. 1. This writ appeal is preferred against the order made in W.P.No.3873 of 2007 dated 12.10.2012, wherein the appellant prayed to quash the order of the first respondent dated 22.8.2005 as well as the endorsement issued by the second respondent dated 31.7.2006 rejecting the claim of promotion to the appellant as Sub-Inspector (AR), Chennai City for the year 2002 with all consequential benefits. The learned single Judge dismissed the writ petition by order dated 12.10.2012, against which this writ appeal is filed. 2. The brief facts necessary for disposal of the writ appeal are as follows: (a). Appellant was initially enlisted as Grade-II Police Constable on 25.5.1988 and was promoted as Grade-I Police Constable in the year 1995. He was promoted as Head Constable on 23.1.1998. His services in the cadres of Head Constable was regularised with effect from 23.1.1998 and he completed probation of two years on 23.1.2000. From the date of promotion as Head Constable, appellant is holding the said post. (b). The appellant belongs to backward class community and he was awarded with 51 money awards and two GSE awards. He was given the Commando badge as he successfully completed three months Commando Training and also completed nine months ADI Training. The appellant is having clean record of service throughout his career. (c). The next avenue of promotion available to Head Constable (AR) is to the post of Sub-Inspector (AR). There are two modes of appointment to the post of Sub Inspector (AR) viz., direct recruitment and by promotion from the cadre of eligible Head Constables. Promotion will have to be made by the Promotion Board under the Chairmanship of Superintendent of Police in Districts, and cities are concerned by Deputy Commissioner of Police. Based on the recommendations of the concerned Promotion Board, 'C' list of Head Constables will be prepared and based on the rankings in the 'C' list, regular promotions will have to be made to the post of Sub-Inspector (AR). Every year promotion Board will be constituted to fill up the vacancies all over Tamilnadu as per the guidelines issued by the DGP. The crucial date for deciding eligibility for promotion is first of July every year. (d). The Promotion Board will undertake the following norms for preparing the 'C' list and submit its recommendations to the Appointing Authority: Written test ... 30 marks | Drill test ... The crucial date for deciding eligibility for promotion is first of July every year. (d). The Promotion Board will undertake the following norms for preparing the 'C' list and submit its recommendations to the Appointing Authority: Written test ... 30 marks | Drill test ... 10 marks | 50 marks Viva voce ... 10 marks | Past performance ... 30 marks | Clean Defaulter sheet ... 10 marks | 50 marks Rewards ... 10 marks | (upto 100 - 5 marks; 101 and above - 5 marks = 10 marks) ---------------- 100 marks For promotion to the post of Sub-Inspector (AR), Head Constables should satisfy Rule 3(iii) of the Special Rules, which states that the Promotee (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; and (iii). must have completed 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 (crucial date). (e) For the year 2002, 74 vacancies in the post of Sub-Inspectors (AR) arose in whole of Tamil Nadu for promotion from the cadre of Head Constables in Armed Reserve. The first respondent issued proceedings on 21.2.2003 and prescribed guidelines to be followed by the Promotion Boards. Out of 74 vacancies, 22 posts were reserved to the City of Chennai. (f) The second respondent published the list of 550 eligible Head Constables at Chennai on 10.3.2003 to attend written test to be held on 20.3.2003 and 159 candidates scored 12 marks and above and they were declared as passed and eligible for further tests viz., oral test and drill test as per the orders of the second respondent dated 23.3.2003. The appellant secured the following marks: Written test ... 20.5 out of 30 marks Drill or Parade test ... 09 out of 10 marks Oral/Interview ... 05 out of 10 marks ------------------------- 34.5 out of 50 marks --------------------------The Promotion Board scrutinised the ACR, Defaulter Sheet as well as Rewards of the 159 participants for awarding remaining 50 marks under three sub-heads and the following marks were awarded to the appellant: ACR ... 10 out of 30 Defaulter Sheet ... 10 out of 10 Rewards ... 05 out of 10 marks ------------------------- 34.5 out of 50 marks --------------------------The Promotion Board scrutinised the ACR, Defaulter Sheet as well as Rewards of the 159 participants for awarding remaining 50 marks under three sub-heads and the following marks were awarded to the appellant: ACR ... 10 out of 30 Defaulter Sheet ... 10 out of 10 Rewards ... 5 out of 10 --------------- 25 out of 50 --------------- Thus, in total, the appellant secured 59.50 out of 100 marks for Promotion in the year 2002 against the cut-off marks of 60 out of 100 marks. 22 persons were selected and the appellant could not be included due to shortage of 0.5 marks. Three persons who secured 60 out of 100 marks were selected. (g). Aggrieved over the non-award of actual marks for ACR as well as Rewards, appellant has submitted a representation on 8.5.2003 and pointed out that four vacancies out of 22 are available as four persons selected, have not completed four years of service in the cadre of Head Constables. The said representation having been rejected, appellant filed the writ petition with the above prayer. The respondents opposed the prayer by filing counter affidavit by stating that the highest marks secured by the candidates in Chennai City was 76.5 out of 100 marks and the cut-off marks fixed was 60. It is further stated in the counter affidavit that the appellant secured 59.5 marks and the award of marks for ACR and Rewards was in accordance with the norms followed uniformly. (h). The appellant filed rejoinder to the counter affidavit and contended that the award of 10 marks out of 30 marks to ACR is not proper considering the entries made in ACR. Similarly for 53 Rewards, award of only 5 marks is not proper. (i). The respondents have filed additional counter affidavit and stated that the following marks were awarded for each grading relating to ACR for different years: YEAR GRADATION MARKS ELIGIBLE MARKS AWARDED 1998 Average 2 2 1999 Average 2 2 2000 Average 2 2 2001 Good 6 6 2002 Above Average 4 4 Total 16 Marks/5 Years Totally 16 marks for five years was calculated to three times and the mark was rounded of to 10 marks out of 30. The learned single Judge accepted the said stand of the respondent and dismissed the writ petition. 3. The learned single Judge accepted the said stand of the respondent and dismissed the writ petition. 3. The learned counsel appearing for the appellant argued that the award of five marks for 53 Rewards out of 10 marks is not correct and award of 10 marks out of 30 in the Assessment of Service based on personal file (ACR report) for five years is also not proper and the appellant is entitled to get more marks. Learned Counsel submitted that if 0.5 marks is added under any one of the head, the appellant will reach the cut-off marks of 60. The learned counsel also filed additional typed set of papers with supporting affidavit containing personal reports (ACR entries) for the period from 23.1.1998 to 31.3.1998; 1.4.1998 to 31.4.1999; 1.4.1999 to 31.3.2000; 1.4.2000 to 31.3.2001; and 1.4.2001 to 31.3.2002 and submitted that for the period from 1.4.2001 to 31.3.2002 appellant was graded "outstanding", however he was awarded only 4 marks, as if his grading was "Above average". The learned counsel also pointed out that for grading "good" in the year 2001, the respondents have awarded 6 marks and hence the grading "outstanding" having weightage of more than good, appellant is entitled to be awarded with 6 marks for the year 2002, but was awarded only 4 marks treating the grading as "Above average" and the same is contrary to the records and arbitrary. 4. The learned Special Government Pleader appearing for the respondents on the other hand submitted that if this Court is of the view that the marks are not awarded properly for the year 2002 i.e., for the period from 1.4.2001 to 31.3.2002 (ACR), the matter may be remitted back to the second respondent to reassess the marks for the year 2002 and depending on the reassessment the appellants claim may be directed to be reconsidered. 5. We have considered the rival submissions and perused the records produced by the appellant as well as the learned Special Government Pleader. 6. It is not in dispute that the cut-off marks for promotion to the post of Sub-Inspector (AR) for the year 2002 was fixed as 60/100. The appellant secured totally 59.5 marks as per the assessment made, including the assessment relating to ACR entries. For ACR entries, the total marks to be awarded is fixed as 30 and the appellant was awarded 10 marks alone. The appellant secured totally 59.5 marks as per the assessment made, including the assessment relating to ACR entries. For ACR entries, the total marks to be awarded is fixed as 30 and the appellant was awarded 10 marks alone. As per the guidelines issued for awarding marks for ACR entries as admitted in the additional counter affidavit for the grading "good" and above, namely "outstanding", 6 marks are to be awarded. Admittedly, appellant was graded with "Outstanding" by the Reporting Officer for the period from 1.4.2001 to 31.3.2002 and the Supervising Officer also endorsed the same by stating "I agree with the Reporting Officer". The xerox copy of the grading for the period from 1.4.2001 to 31.3.2002 is also filed in the typed set of papers. For proper appreciation the same is extracted hereunder: "PERIODICAL REPORT FOR THE PERIOD FROM 01.4.2001 TO 31.3.2002 1. Name : C. Kumaran 2. Current Rank & No. : HC 11506 3. Date of (a) Birth : 03.06.1965 (b) Enlistment : 25.05.1988 (c) Commencement of Probation : 21.01.1998 in Current Rank (d) Inclusion of list for promotion: 24.01.2000 to next rank 4. Post held during the Period of review : Sub-Inspector of Police From 01.4.2001 to 31.3.2002 5. Character and Conduct : Very Good 6. Relation with (a) Public : Outstanding (b). Superiors : Outstanding (c). Colleagues : Outstanding (d). Subordinates : Outstanding 7. Man Management (a). Central : Outstanding (b). Welfare : Outstanding 8. Instructional ability : Outstanding 9. General competence in posts held in the : Outstanding period of review 10. Rewards and Defaults (a). Rewards during the period during : Money Rewards 48 the service (b) Defaults during the period during : NIL the service (c). Commendations and structures : Satisfaction during the period of report 11. Details of outstanding work during the : He was selected and posted as Asst. period of reports Drill Instructor in PRS. Che.2. He is as efficient sincere and hard worker 12. Commendations and structures : Satisfaction during the period of report 11. Details of outstanding work during the : He was selected and posted as Asst. period of reports Drill Instructor in PRS. Che.2. He is as efficient sincere and hard worker 12. Suitability for completion of : Suitable for promotion Probation / Promotion to next higher ranks Station : S1 20 PLN Signature of Reporting Officer XXXX Date: 31.3.2002 Sd/- (NAME IN BLOCK LETTERS) (S. RAMASAMY) SUB-INSPECTOR OF POLICE AR D' COY 20 PLN PUDUPET, CHENNAI – 600 002 Remarks of Supervising Officer : I agree with Reporting Officer Station : XXXXX sd/- Signature of Reporting Officer (NAME IN BLOCK LETTERS) (S. VENKATARAMAN) Desgination: INSPECTOR OF POLICE ARMED RESERVE D' COY 20 PLN PUDUPET, CHENNAI – 600 002 Remarks of Supervising Officer : Sincere and Hard Working. Station : XXXXX sd/- Signature of Reporting Officer (NAME IN BLOCK LETTERS) Designation: ASST. COMMISSIONER OF POLICE ARMED RESERVE D' COY 20 PLN PUDUPET, CHENNAI – 600 002 ACKNOWLEDGEMENT OF OFFICER REPORTED ON Remarks of Supervising Officer : Station : AR XXXXX sd/- Signature of Reporting Officer C. KUMARAN (NAME IN BLOCK LETTERS) Designation: HEAD CONSTABLE Note:- Assessment in column 5 to 9 should be in one of the following sentence. Outstanding, above average, average and below average." 7. In the light of the above factual aspect viz., appellant was graded with "outstanding" for the year 2002, which is more than the grade "good", the appellant is entitled to get 6 marks as per the calculation, whereas the appellant was awarded only 4 marks. Thus, there is an error apparent on the face of the records in awarding of marks under the head ACR to the appellant. The award of marks for 53 Rewards i.e, 5/10 is proper since for Rewards between 1 to 100, as per norms, five marks alone is to be awarded. 8. The right of a Government Servant to consider for promotion is a fundamental right guaranteed under Article 16 of the Constitution of India. Such consideration must not be arbitrary to satisfy the guaranteed right under Article 14 of the Constitution of India. The Hon'ble Supreme Court stressed the said points in the decision reported in (2010) 4 SCC 290 (Union of India v. Hemraj Singh Chauhan) and in paragraphs 35 and 36 held thus, "35. Such consideration must not be arbitrary to satisfy the guaranteed right under Article 14 of the Constitution of India. The Hon'ble Supreme Court stressed the said points in the decision reported in (2010) 4 SCC 290 (Union of India v. Hemraj Singh Chauhan) and in paragraphs 35 and 36 held thus, "35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare state. 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution." (Emphasis Supplied) 9. In such circumstances the order of the respondent Department and the learned single Judge dated 12.10.2012 made in W.P.No.3873 of 2007 are set aside and the matter is remitted to the second respondent to reassess the ACR entry for the year 2002 (2001-2002) and award marks afresh. If the appellant is eligible to get additional 0.5 marks and the prescribed cut-off marks being 60/100, the appellant shall be given promotion as Sub-Inspector (AR) and all other benefits as was given to other persons, who were promoted as Sub-Inspectors (AR) for 2002, as the appellant was illegally denied promotion without any fault on his part. The said exercise is directed to be completed within a period of four weeks from the date of receipt of copy of this order. No costs.