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2019 DIGILAW 3350 (MAD)

J. Janorious Fausta v. P. K. Murugan

2019-12-05

AMRESHWAR PRATAP SAHI, SUBRAMONIUM PRASAD

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JUDGMENT : Amreshwar Pratap Sahi, J. 1. The challenge raised in this appeal is to the reversal of seniority by the learned Single Judge through the impugned judgment in relation to Sub Inspectors (Technical) that had been finalized in the year 2007 on the basis of Ad-hoc Rules of 1999 and Rule 25 of the Special Rules of the Tamil Nadu Police Subordinate Service, on the basis of marks obtained in the final examination at the Police Training College, Vellore. The Rules have been extracted and referred to in the impugned judgment and, therefore, need not be reproduced again. 2. The contention raised by the learned Senior Counsel for the appellants is that the learned Single Judge, in his opinion, by applying the rule of purposive interpretation has come to the conclusion that it is rather preposterous for the administration to have given undue weightage only to the proficiency of General Knowledge, completely wishing away their proficiency in the technical subjects/training. In order to understand the reasoning given by the learned Single Judge, where he has also held that the Rule has been applied too rigidly and with little application of mind, the Proviso to Rule 25(a), which is the bone of contention between the parties, is extracted herein under: "Provided that in the case of Sub-Inspectors (recruited direct) (category 2 of class I), the seniority shall be fixed on the basis of the marks obtained by them in the final examination in the Police Training College, Vellore." 3. The argument of the learned Senior Counsel for the appellants is that the learned Single Judge has practically legislated and given a new dimension to the then existing Rule on the basis of what should and what ought to be correct in his opinion, which amounts to substituting the very rule of seniority itself under the cover of a purposive interpretation. 4. The learned Single Judge has also taken notice of the fact that, during the course of arguments, the Court was informed that the Government having recognized the anomaly in assignment of seniority on the basis of General Knowledge alone, proceeded to rectify the same by providing adequate weightage to the technical subjects subsequently in 2016. 5. 4. The learned Single Judge has also taken notice of the fact that, during the course of arguments, the Court was informed that the Government having recognized the anomaly in assignment of seniority on the basis of General Knowledge alone, proceeded to rectify the same by providing adequate weightage to the technical subjects subsequently in 2016. 5. The learned Single Judge also appears to have been influenced by this change in Rule having been brought about by giving equal weightage to all the Sub Inspectors, which, according to the learned counsel for the respondents, is only in recognition of the anomaly that existed that has been rightly accepted by the learned Single Judge. 6. Learned Senior Counsel for the appellants has contended that without there being any challenge raised to the Rule, any such interpretation given by the learned Single Judge amounts to violating the existing rule meant for fixing seniority. 7. Mr. K. Venkataramani, learned Senior Counsel for respondents 16 to 19 and 22 to 24, and Mr. M. Radhakrishnan, learned counsel for the original writ petitioner contend that Rule 25(a) of the Special Rules only provides for fixing seniority on the basis of the marks obtained in the "final examination" in the Police Training College, Vellore. Thus, there was no necessity to challenge the validity of the Rule, as the Rule provides for the term "final examination" and, therefore, the final examination in respect of the Sub Inspectors (Technical) and that of the other Sub Inspectors of Police cannot be differentiated on the basis of the subjects for which marks are awarded and as the courses are different for both the streams. The learned Single Judge was right in bringing about a fusion to implement and execute the Rule in a manner which removes the anomaly emerging on the basis of different courses or streams to which the Sub Inspectors belong. It was only to harmonize and to bring in uniformity that the Rule has been interpreted and the seniority has rightly been directed to be revisited accordingly. 8. It is also their contention that there was no delay, inasmuch as the seniority list was finalized in the year 2007, whereafter representations were filed which were being pursued and ultimately culminated in the rejection of the representation on 10.3.2010, whereafter the writ petition was filed in the year 2010 itself. 9. 8. It is also their contention that there was no delay, inasmuch as the seniority list was finalized in the year 2007, whereafter representations were filed which were being pursued and ultimately culminated in the rejection of the representation on 10.3.2010, whereafter the writ petition was filed in the year 2010 itself. 9. It is further submitted that in the year 1999, the Ad-hoc Rules itself mentions applicability of the Special Rules subject to modification of the Ad-hoc Rules. 10. On the other hand, learned Senior Counsel for the appellants contends that in effect, the learned Single Judge has carved out a new rule by applying the rule of interpretation without there being any challenge raised to the Rules and, therefore, the impugned judgment is vitiated. 11. Learned counsel for the respondents, as indicated above, have advanced their submissions laying emphasis on the fact that the disparity which existed in the applicability of the Rules has been chiseled through the tool of interpretation by the learned Single Judge not by supplanting the Rule in any way and, therefore, no error has been committed, for which there was no necessity to challenge the correctness of the Rule. 12. We have considered the submissions raised. 13. From the pleadings on record, we find that the facts that emerge are that this dispute is with regard to the seniority of 2001 batch Sub Inspectors (Technical), that was fixed by the Government on 6.12.2006 and promulgated through the office proceedings dated 13.2.2007 based on the marks obtained in the final examination conducted at the Police Training College on the completion of basic training. 14. The first respondent/writ petitioner - Mr. P.K. Murugan, filed the writ petition, giving rise to this appeal, with a prayer to revise the seniority in the rank of Sub Inspector (Technical) according to the marks obtained in the examination conducted in technical subjects alone by the Police Telecommunication Branch by ignoring the marks obtained by the candidates in the subject of Law in the Police Training College. 15. Since promotions were awaited and the writ petition was filed, it was decided to grant promotion subject to the outcome of the writ petition. The respondent/Police Department took a stand that as per the Ad-hoc Rules framed by the Government in G.O.Ms. 15. Since promotions were awaited and the writ petition was filed, it was decided to grant promotion subject to the outcome of the writ petition. The respondent/Police Department took a stand that as per the Ad-hoc Rules framed by the Government in G.O.Ms. No. 53, Home (Police-IX), dated 18.1.1999, the Special Rules applicable to the holders of permanent posts of Tamil Nadu Police Subordinate Service, shall apply to the temporary posts in the respective categories of the Technical posts of the Police Telecommunication Branch. It was also the stand of the Police Department that as per Rule 25(a) of the Special Rules for Tamil Nadu Police Subordinate Service, seniority of directly recruited Sub Inspectors had to be fixed based on the marks obtained in the final examination held by the Police Training College on completion of training. As per this training course, the marks obtained in Law subjects could not be totally ignored for the purpose of fixing seniority. Accordingly, the request made by the first respondent/writ petition - P.K. Murugan to revise the seniority on the basis of marks obtained in the technical subjects only by the Police Telecommunication Branch was declined as being not possible keeping in view the existing Rules. 16. However, the Police Department itself in respect of future recruitments proposed necessary amendments to the Ad-hoc Rules of 1999 that came to be accepted on 2.12.2016. The amended Rule as applicable now of seniority is as follows: "Seniority: - (a) The seniority of the persons directly recruited to the post of Sub Inspector (Technical) shall be fixed on the basis of the marks obtained by them in the final examination conducted by the Tamil Nadu Police Academy, Chennai at the end of the training. In the case of those who secure same marks, seniority shall be decided based on the date of birth, whereby the older person will be placed as senior. Those who failed in one or more subjects in the final examination will be deemed to have scored zero marks in such subjects for the purpose of computation of seniority. However, those who failed in any outdoor or indoor subjects will have to pass the examination for the purpose of satisfactory completion of probation. Those who failed in one or more subjects in the final examination will be deemed to have scored zero marks in such subjects for the purpose of computation of seniority. However, those who failed in any outdoor or indoor subjects will have to pass the examination for the purpose of satisfactory completion of probation. (b) Persons directly recruited to the post of Sub Inspector (Technical) under the twenty percent departmental quota shall be placed above the direct recruit selected from open quota in the same recruitment. (c) i) Module – I (C) (i) Module –I 1. Indoor Law and other subjects 300 Marks 2. Outdoor Parade 150 Marks (ii) Module – II Technical Subjects 700 Marks Total 1150 Marks 'The Examinations shall be conducted by the Tamil Nadu Police Academy, Chennai and the minimum marks for a pass shall be fifty percent in each subject'." 17. Thus, it is evident that seniority, now, after 2016 amendment is being fixed as was suggested by the learned Single Judge, but this itself is a proof of the fact that the seniority Rule which was existing prior to that and was in force in the year 2007 when the seniority was published did not contain any such provision. It was only the proviso to Rule 25(a), referred to above, that governed the field. 18. It is settled law that seniority is a matter of rule and, therefore, in our opinion, the learned Single Judge has extended benefits by virtually rewriting the rule of seniority that existed in the year 2007. While interpreting a statutory provision, it is only the creases that can be ironed out, but the texture cannot be changed. Legal reasoning should not supplant reason itself. In the instant case, by virtue of the impugned judgment, the seniority has been reversed by giving a different meaning to the Rule that existed as contained in the proviso extracted herein above. 19. The words used in the proviso are clearly to the effect "marks obtained". We are laying emphasis on this phrase, inasmuch as the argument of the learned counsel for the contesting respondents is to give a different meaning to the words "final examination" by classifying it differently in respect of Sub Inspectors (Technical), which would amount to writing a separate seniority rule for them and introducing it in Rule 25(a) of the Special Rules, which otherwise did not exist. This cannot be done by the rule of purposive interpretation. 20. In order to press the rule of purposive interpretation, there has to be some ambiguity or a reason to choose between two possible interpretations. This can only be done when there is some doubt about the purpose. It is not every hardship or inconvenience which can be taken to be a serious drafting error, inasmuch as the presumption of fairness in a legislative act exists, which cannot be given a different meaning on account of some consequences to be derived by way of implication. If the intendment is clear and admits of no ambiguity, then in that event, it would not be appropriate to press into service Heydon's rule of purposive interpretation. If the parameters of determining seniority are spelt out in the provision itself, then there is no reason to presume any mischief and supply a meaning to the statutory provision which categorically states that seniority has to be fixed on the basis of marks obtained in the final examination in the Police Training College. We are supported in drawing this conclusion from the ratio regarding the principles of purposive interpretation as held in Sri Ram Saha v. State of West Bengal, reported in (2004) 11 SCC 497 . 21. The subsequent change brought about by the Government, therefore, cannot come to the aid of the respondents to contend that now since the change has been brought about, it should be understood to have been existing even then. This argument cannot be an argument of purposive interpretation. Apart from this, the then existing Rule never intended to classify the methodology for the purpose of fixing seniority on the basis of marks obtained. 22. For all the reasons aforesaid, we find that the impugned judgment dated 19.1.2018 cannot be sustained. 23. The appeal is accordingly allowed and the impugned judgment dated 19.1.2018 is set aside. The seniority as circulated on 13.2.2007 insofar as the appellants vis-a-vis contesting respondents are concerned is upheld and shall be maintained accordingly. No costs. Consequently, CM.P. No. 11496 of 2018 is closed.