IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-01-2009 CORAM: THE HONOURABLE MR JUSTICE V. RAMASUBRAMANIAN W.P.Nos.29709, 29710, 30338 of 2008 and W.P.Nos.89 and 90 of 2009 And M.P.Nos.1,1,1,1,2 and 2 of 2008 W.P.Nos.29709/2008 and W.P.No.29710/2008 S.Sakthivel .. Petitioner in WP 29709/2008 M.K.Thinakaran .. Petitioner in WP 29710/2008 Vs. 1. Principal Secretary to Government, Home Department, Fort St. George, Chennai-600 009. 2. Director General of Police, .. Respondents in Chennai-600 004. both WPs. These writ petitions filed under Article 226 of the Constitution, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the first respondent herein in his proceedings Letter No.45729/Police-3/2008-30 dated 05.12.2008 and quash the same in so far as the petitioners are concerned and consequently direct the respondents herein to restore the petitioners as Sub-Inspector of Police (Taluk Police) as per the original appointment order dated 20.12.2007 with all service benefits. W.P.No.30338/2008 1.G.Annakodi, Reg. No.6300208 2.N.Arulselvan, Reg. No.0500297 3.S.Balamurali, Reg. No.0500359 4.S.Elumalai, Reg. No.0104820 5.N.Raja Singh, Reg. No.0101413 6.N.Thirumal, Reg. No.2801927 7.P.Manimaran, Reg. No.2801931 8.S.Venkatesh Selvam, Reg. No.2802191 9.R.Alex, Reg. No.2900401 10.V.Suresh, Reg. No.2901117 11.G.Mariappan, Reg. No.0100374 12.S.Dharmalingam, Reg. No.0300153 13.S.Periyasamy, Reg. No.1800529 https://hcservices.ecourts.gov.in/hcservices/ 14.S.Vasivam, Reg. No.2200387 15.R.Venkatesan, Reg. No.1138 16.P.Ramesh, Reg. No.1501680 17.S.Muruganandam, Reg. No.1800726 18.M.Ilayaraja, Reg. No.2201422 19.M.Rajakumar, Reg. No.2202469 20.M.Durai Pandi, Reg. No.2200467 21.U.Rajasekaran, Reg. No.0102305 22.K.Senthil Kumar, Reg. No.0102193 23.K.Prabakar, Reg. No.0100567 24.R.Rajesh, Reg. No.2300936 25.A.Dineshkumar, Reg. No.1680 26.S.Viramani, Reg. No.7200534 27.R.Jeyasingh, Reg. No.2401450 28.N.Rajasekaran, Reg. No.2400099 29.M.Prabu, Reg. No.1900554 30.S.Umaiorubagam, Reg. No.2900886 31.S.Shunmugavel, Reg. No.2801800 32.K.Arunachalam, Reg. No.2901086 33.J.Krishnaraj, Reg. No.0400621 34.N.Sudalaimani, Reg. No.1340 35.E.Balaraman, Reg. No.0400753 .. Petitioners Vs. 1. Principal Secretary to Government, Home Department, Fort St. George, Chennai-600 009. 2. Director General of Police, Chennai-600 004. .. Respondents This writ petition filed under Article 226 of the Constitution, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the first respondent herein in his proceedings Letter No.45729/Police-3/2008-30 dated 05.12.2008 and quash the same in so far as the petitioners are concerned and consequently direct the respondents herein to restore the petitioners as Sub-Inspector of Police (Taluk Police) as per the original appointment order together with alla service benefits. W.P.Nos.89 and 90 of 2009 V.Muthumarriammal .. Petitioner in WP 89/2009 M.Annalakshmi .. Petitioner in WP 90/2009 Vs. 1. Principal Secretary to Government, Home Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. Director General of Police, Chennai-600 004. .. Respondents in both Wps These writ petitions filed under Article 226 of the Constitution, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the first respondent herein in his proceedings Letter No.45729/Police-3/2008-30 dated 05.12.2008 and quash the same in so far as the petitioners are concerned and consequently direct the respondents herein to restore the petitioners as Sub-Inspector of Police (Armed Reserve) as per the original appointment order together with all service benefits. For Petitioners in all WPs : Mr.R.Thiagarajan, Senior Counsel for M/s. G. Bala & Daisy For Respondents in all WPs : Mr.P.S.Raman, Addl. Advocate General. COMMON ORDER The petitioners in all these cases have come up with a challenge to the show cause notices issued to them by the first respondent, seeking to revise their allotment from Taluk Police to Armed Reserve or from Armed Reserve to Tamil Nadu Special Police for appointment. 2. I have heard Mr.R.Thiagarajan, learned Senior Counsel appearing for the petitioners in all these writ petitions and Mr.P.S.Raman, learned Additional Advocate General for the respondents in all these writ petitions. 3. The Tamil Nadu Uniformed Services Recruitment Board issued a Notification for recruitment of Men/Women Sub Inspectors of Police in the year 2006. By the Notification, 445 posts of Men Sub Inspectors of Police and 72 posts of Women Sub Inspectors of Police were sought to be filled up, out of which 20% of the vacancies were reserved for departmental candidates. The Notification was a common Notification for filling up the posts of Sub Inspectors to Taluk Police, Armed Reserve and Tamil Nadu Special Police. However the Notification also indicated that the allotment of selected candidates to Taluk Police, Armed Reserve and Tamil Nadu Special Police (TSP) would be made on the basis of the marks secured and that the rule of reservation for various communities would be applied as per the existing provisions. 4. All the petitioners were already in service in the Police Department and all of them appeared for selection under the 20% quota reserved for departmental candidates. All of them were declared selected and they were also sent for training, either as Sub Inspectors of Police (Taluk Police) or as Sub Inspectors of Police (Armed Reserve). https://hcservices.ecourts.gov.in/hcservices/ 5. A group of unselected candidates filed a batch of writ petitions in W.P.No.14482 of 2007 etc., contending that the written examination was not conducted properly and that the viva voce was actually manipulated. All the writ petitions were dismissed by an order dated 20.11.2007 holding that the written test was conducted in a proper manner. The unsuccessful candidates challenged the dismissal of their writ petitions before the Division Bench in W.A.Nos.1598 to 1602 of 2007 batch of cases. The Division Bench also dismissed the Writ Appeals by an order dated 28.3.2008. The Special Leave Petitions filed before the Supreme Court were also dismissed on 13.10.2008, thereby putting a seal of approval on the selection. 6. In the meantime, the respondents issued certain proceedings seeking to change the allotment of some of the selected candidates from Taluk Police to Armed Reserve or from Armed Reserve to Tamil Nadu Special Police (TSP). Challenging those revised allotments, the petitioners herein as well as a few others, filed a batch of writ petitions in W.P.No.11181 of 2008 etc. Those writ petitions were allowed by a common order dated 9.7.2008 primarily on two grounds viz., (i) that the allotment from Taluk Police to Armed Reserve amounted to reversion or reduction to a lower category and hence cannot be ordered without notice and (ii) that under Rules 5 of the Special Rules for Tamil Nadu Police Subordinate Services, 1953, the State Government alone was competent to issue revised allotment orders to the list of approved candidates. 7. Consequent upon the above decision dated 9.7.2008 rendered in the batch of cases W.P.No.11181 of 2008 etc., the State Government issued show cause notices dated 5.12.2008 to the petitioners herein, calling upon the petitioners to show cause as to why their allotment shall not be changed either from Taluk Police to Armed Reserve or from Armed Reserve to T.S.P. Challenging these show cause notices, the petitioners have come up with the present writ petitions. 8. Mr.R.Thiagarajan, learned Senior Counsel for the petitioners assailed the impugned show cause notices on the following grounds viz.:- (a) The respondents took a positive stand in the counter affidavits filed in the batch of cases filed by the unsuccessful candidates challenging the selection that the selection and allotment of candidates were made properly in accordance with the marks obtained by the candidates after applying the rules of reservation. After having taken such a stand in the writ petitions filed by the unsuccessful candidates, the respondents have now issued the impugned show cause notices, taking a diametrically opposite position. Inasmuch as the respondents are bound by the stand taken in the batch of writ petitions filed by the unsuccessful candidates W.P.No.14482 of 2007 etc., it is not open to the respondents now to contend that there were discrepancies in the application of communal rotation and that therefore there was a need to revise the allotment order. https://hcservices.ecourts.gov.in/hcservices/ (b) Rule 5 of the Special Rules for Tamil Nadu Police Subordinate Services, under which the impugned show cause notices are issued, empowers the State Government only to revise the list of approved candidates, prior to their appointment. The Rule does not empower the State Government to revise the list of candidates already appointed from the list of approved candidates. (c) In any case, the impugned show cause notices do not contain any factual detail enabling the petitioners to make effective representations. The show cause notices merely say that the Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) pointed out some discrepancies in the application of communal rotation and that therefore there was a necessity to set right the discrepancies. This is a very vague statement to which none of the petitioners can make any reply and hence according to the learned Senior counsel for the petitioners, the impuged show cause notices are liable to be set aside. 9. In response, Mr.P.S.Raman, learned Additional Advocate General submitted that the stand taken by the respondents in the previous batch of cases had to be understood in the context of the dispute raised by the unsuccessful candidates as against the successful candidates. It had nothing to do with the allotment of candidates on the basis of the marks after applying communal rotation. Moreover, the petitioners challenged the revised allotment orders issued by the Additional Director General of Police on the ground of violation of the principles of natural justice and the competence of those authorities to issue revised allotment orders in view of Rule 5 of the Special Rules. This Court accepted the above contentions and consequently the Government thought fit to remove those technical objections by taking recourse to Rule 5. In any event, the proceedings impugned in all the writ petitions are only show cause notices to which the petitioners are obliged to furnish replies and are entitled to come to Court if orders adverse to them are passed. Therefore the learned Additional Advocate General contended that the petitioners are not entitled to challenge the very show cause notices. 10. I have carefully considered the rival submissions. It appears from the two rounds of earlier litigation, one filed by the unsuccessful candidates and the other filed by the present writ petitioners, challenging the revised allotment orders that the respondents themselves are to be blamed for the mess in which they now find themselves in. There has not been either a clarity or consistency in the stand taken by the respondents both with regard to the hierarchy of posts to which appointments were made and with regard to the interchangeability of posts and the powers of the Government to revise the allotments made. The confusion created by the respondents themselves resulted in this Court being led to believe in the second round of litigation (filed by the present petitioners challenging the revised allotment orders) that the allotment of candidates from Taluk Police to Armed Reserve or from Armed Reserve to T.S.P., is a reversion. Even on an earlier occasion, the respondents appear to have taken a stand before the Division Bench of this Court that all the three categories of posts viz., Sub Inspectors (Taluk Police), Sub Inspectors (Armed Reserve) https://hcservices.ecourts.gov.in/hcservices/ and Sub Inspectors (TSP) are not interchangeable. Yet the Government have passed several orders in the past, right from the year 1996, transferring hundreds of Sub Inspectors from Armed Reserve to Taluk Police, each time calling it as an one time measure. Thus, at every point of time, the respondents appear to have taken different positions, to suit the occasion, without reference to the Special Rules. The confusion is further compounded by a Circular issued by the Director General dated 24.2.1987 calling the transfer of a person from local police to Armed Reserve as a punishment. The history of the Subordinate Police Service shows that despite all the three categories of posts carrying the same scale of pay, there is a craving for Taluk Police, for extraneous considerations. Therefore before adverting to the other issues, it is necessary for me to explode the myth as to whether the three categories of posts are superior or inferior to one another, making a transfer from one to the other, either a promotion or a reversion/reduction of category. WHETHER TRANSFER FROM TALUK POLICE TO ARMED RESERVE OR TSP IS A REVERSION: 11. The Special Rules for Tamil Nadu Police Subordinate Service were originally issued under G.O.Ms.No.2743, Publice (Services) Department, dated 30.9.1953 in exercise of powers conferred by Sections 8 and 10 of the Madras District Police Act, 1859 and Sections 9 and 11 of the Madras City Police Act, 1888 read with the proviso to Article 309 of the Constitution of India. Rule 2 grouped the Tamil Nadu Police Subordinate Service into four Classes viz., Class-I, Class-II, Class-III and Class-IV. Class-I of the service consisted of seven categories of posts, out of which one was abolished in the year 1983. The remaining six categories of posts under Class-I of the service are as follows:- "Category 1. Inspectors of Police and Inspectors in Vigilance and Anti-Corruption. 2. Sub Inspectors of Police. 3. Reserve Inspectors. 4. Reserve Sub Inspectors Office of the Director General of Police, Madras. 5.abolished 6.Head Constables including Band Head Constables Office of the Director General of Police, Madras and Reserve Head Constables including Armourers, Signallers and Motor Transport Drivers. 7.Constables including Band Constables, Office of the Director General of Police, Madras, Reserve Constable, Buglers and Bellow Boys." https://hcservices.ecourts.gov.in/hcservices/ 12. Rule 3 (a) (i) prescribes that appointment to several classes and categories shall be made as indicated in Annexure-I. Rule 11 stipulates that the selection for appointment of Sub Inspectors by direct recruitment shall be made by the T.N.U.S.R.B. It also prescribes the communal rotation to be adopted while making such appointments. Rule 12 relates to selection and appointment of Reserve Sub Inspectors. Akin to Rule 11, Rule 12 also prescribes that the selection of Reserve Sub Inspectors should be made by T.N.U.S.R.B and that the communal rotation shall apply. 13. Rule 14-B reads as follows:- "14-B(1) On recruitment a Police Constable shall join in an Armed Police Battalion. He shall be imparted with a rigorous training which will suit the needs of both the Armed Police outdoor duties and the contrasting duties of Taluk Police. The emphasis shall be on good public relations. He shall be specially trained in responding to the needs of the common man as detailed below:- (a) to impart knowledge of law with special emphasis on constitutional rights of citizens. (b) to give both the critical and practical knowledge about the functioning of Police units, especially Police Station and Outposts. (c) to teach the scientific methods of investigation. (d) to bring about qualitative change in the outlook of Police Constables to maintain good Police – Public relationship. (e) to develop their leadership qualities to command and control any unit under their charge. (f) to improve their talents in sports and other extra curricular activities. (g) to mould them into first rate citizens and models for others to emulate. (ii) After such training the Police Constable shall serve in the Tamil Nadu Special Police Battalion for the first three years. Thereafter he shall be transferred to District Armed Reserve where he shall serve for a period of not less than one year, after which he shall be transferred to Taluk Police establishment." https://hcservices.ecourts.gov.in/hcservices/ Thus, in so far as Constables are concerned, the first appointment appears to be, to the TSP, from where a person is posted to Armed Reserve and then to the Taluk Police, by virtue of Rule 14-B. But unfortunately, there is no similar provision with regard to Sub Inspectors. 14. Rule 18 (a) deals with the training to be given to probationers and the pay admissible to them. The said rule relating to Sub Inspectors, Reserve Sub Inspectors and Constables requires reproduction and hence it is extracted as follows:- "18(a) Probationers who have to undergo training and their pay: Probationers shall undergo training and examination as follows within the period of their probation and their pay during the period shall be as indicated below:- ----------------------------------------------------------- PROBATION COURSE OF TRAINING PAY (1) (2) (3) ----------------------------------------------------------- 1. Sub Inspectors (1) Course of Training (a) Sub Inspectors recruited direct for one year in the recruited or by transfer Police Training direct during from any other College, Madras the period of service (Category and examination in training in 2 of Class I) the subject the College prescribed for the and during the course. period of practical training otherwise than on independent of a Police Station in minimum time scale pay. 1(a) Reserve Sub (1) Course of Training The pay as Inspectors for one year in the they would in the Armed Police Training have drawn Reserve College, Madras but for this on appointment and examination training. as Sub Inspector in the subject on transfer. prescribed for the course. A probationer shall have two chances for passing the examinations one at the end of the course and the second six months hence. Provided that the Director General of Police, may for adequate reasons to be recorded in writing allow a probationer a third chance to pass the examination. (The deficiency in the period of training of a fresh probationer appointed in the place of a first recruit https://hcservices.ecourts.gov.in/hcservices/ within three months after the opening of the College shall be disregarded) (ii) After the above course, practical During the period of training for one year and six months, practical training in including independent charge of a independent charge Police Station for not less than one of a Police Station year and an oral examination in and thereafter during practice held by the Superintendent the period of of Police in the Mofussil and by a probation, the minimum Deputy Commissioner under the pay in orders of the Commissioner of Police the time scale of pay. in the City of Madras. 2. Reserve Sub Inspectors (Category 5 During the first twelve of Class I recruited direct) months a special course of training with the Malabar Special Police." 15. Rule 25 deals with seniority. Sub Rule (b) of Rule 25 makes it clear that the transfer of a person from one class or category of the service, to another class or category of the service carrying the same scale of pay shall not be treated as first appointment to the latter class or category of post. This Rule 25 (b) reads as follows:- "(b) The transfer of a person from one class or category of the service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred, shall be determined with reference to the rank in the class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub rule seniority shall be determined by the appointing authority." 16. Rule 32 which deals with transfers and postings contains no restrictions for posting a person from one category of post to another carrying the same scale of pay. 17. The Annexure-I under Rule 3 (a) prescribes the methods of appointment and the appointing authorities for each category of post. It was amended by G.O.Ms.No.1532, Home Department, dated 1.7.1988 with effect from 15.11.1974, to the effect that Reserve Sub Inspectors of Police in the Armed Reserve shall also be eligible for appointment to the posts of Sub Inspectors (Taluk Police) by transfer, within the 60% quota reserved for direct recruitment. It is seen from Annexure-I that the method of appointment of Sub Inspectors of Police (meaning Sub Inspectors of Police (Taluk Police)) is either by promotion from among Head Constables or by direct recruitment or transfer from any other class or category or recruitment by transfer from any other service (as amended by G.O.Ms.No.2635, Home (Pol.III) Department, dated 22.9.1986). Annexure-I prescribes similar methods of recruitment in common for (i) Head Constables and Reserve Head Constables and (ii) Constables and Reserve Constables. https://hcservices.ecourts.gov.in/hcservices/ 18. While the Inspectors, Sub Inspectors and Constables, both in the Taluk Police and in the Armed Reserve, are governed by the same set of rules viz., the Special Rules for Tamil Nadu Police Subordinate Services, the Inspectors, Sub Inspectors and Constables of Tamil Nadu Special Police are governed by the Special Rules for Tamil Nadu Special Police Subordinate Service, 1978. 19. From the two sets of Special Rules, one governing the posts of Sub Inspector (Taluk Police) and Sub Inspector (Armed Reserve) and another governing the post of Sub Inspector (TSP), it is seen that the posts are actually equivalent in status. While the posts of Sub Inspector (Taluk Police) and Sub Inspector (Armed Reserve) belong to categories 2 and 4 respectively of Class I of the Tamil Nadu Police Subordinate Service, the post of Sub Inspector (TSP) belongs to Tamil Nadu Special Police Subordinate Service. But all of them admittedly carry the same scale of pay and the next avenue of promotion to all of them is the post of Inspector. The method of appointment to each of these posts under the respective rules, include transfer from any other category or service. The seniority of such person transferred from one category to another or from one service to another, is also protected by Rule 25 (b) which I have extracted earlier. If a person cannot be appointed from one category to another, Rule 25 (b) has no place and would be redundant. Direct recruitment to all these posts are through the Tamil Nadu Uniformed Services Recruitment Board through a common recruitment drive. The Notification for appointment itself establishes this and one post is not shown to be inferior in status to the other. 20. While the position with regard to the status of these three categories of posts, under the statutory rules, is as above mentioned, the respondents appear to have messed up the whole issue. It is seen from a decision of a Division Bench of this Court in A.D.Sakkaravarthy Vs. State of Tamil Nadu, dated 16.3.2004 in W.P.No.9515 of 2000, that the Government filed a counter contending that these three categories of posts were not interchangeable. Paragraph-3 of the said decision containing an extract of the counter filed by the respondents, reads as follows:- "3. The respondents have filed counter. The contents of the counter is as follows:- "The Sub Inspectors of Police are appointed in three categories: 1) Taluk Police, 2) Armed Reserve, 3) Tamil Nadu Special Police. The Sub Inspector of Police in Taluk Police and Armed Reserve are governed by the Special Rules for Tamil Nadu police subordinate service rules, 1953. The Sub Inspector of Police in Tamil Nadu Special Police is governed by the Special Rules for Tamil Nadu Special police Subordinate service rules, 1978. There is no provision in Tamil Nadu police subordinate service rules for transferring the Sub Inspector of Police from one category to another category. Thus, all the three https://hcservices.ecourts.gov.in/hcservices/ categories are not interchangeable. The line of promotion is also different." On the basis of the above counter, the Division Bench held in paragraph-9 as follows:- "9. As per the service rules, the three categories of Sub Inspectors of Police have their own line of promotional prospects to the post of Inspector of Police in the case of Category. In other words, the candidates were selected for the post of Sub Inspectors of Police in the Police Force comprising three wings having separate service rules, training procedures and duties and responsibilities. Their posting to the ratio based on the marks secured by them during the selection process not by following the Single Point Entry System." 21. The above case arose out of a claim made by a person who was selected for appointment to the post of Sub Inspector (Armed Reserve). He filed an application before the Tamil Nadu Administrative Tribunal, seeking a direction to the respondents to appoint him as Sub Inspector in Taluk Police on the basis of seniority. The application was dismissed by the Tribunal and he filed a writ petition before this Court. The respondents filed a counter in the said writ petition contending that all the above three categories of posts are governed by separate set of rules and that they are