IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.32624 of 2004 S.Mani .. Petitioner Vs. 1. The Director General of Police Mylapore, Chennai – 600 004. 2. The Commissioner of Police Office of the Commissioner of Police Egmore, Chennai – 600 008. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records in Rc.No.104318/ NGBV(2)/2000, dated 12.5.2000 of the respondents in connection with the impugned order passed by the first respondent, to quash the same and to direct respondents 1 and 2 to regularise the service of the petitioner as Sub Inspector of Police from the date of the initial promotion as Sub Inspector of Police (Armed Reserve) and grant him all consequential service and monetary benefits. For Petitioner : Mr.A.S.Vijay Narayanan for Mr.Haja Mohideen Gisti For Respondents : Mr.N.Senthil Kumar Additional Govt. Pleader ORDER The writ petition is directed against the order of the first respondent/Director General of Police dated 12.5.2000 and for a direction to the respondents to regularise the service of the petitioner as Sub Inspect of Police (Armed Reserve) from the date of his initial promotion as Sub Inspector of Police (Armed Reserve) and grant all service and monetary benefits to him. 2.1. The petitioner has joined in the District Armed Reserve, Chennai City as Police Constable on 13.9.1979 and was promoted as Head Constable on 15.5.1985. The petitioner was declared probation on 14.5.1987 and was promoted as Reserve Sub Inspector from 1.1.1998 https://hcservices.ecourts.gov.in/hcservices/ temporarily. It was due to the non availability of the vacancies, he was reverted as Head Constable with effect from 16.6.1998. 2.2. The post of Sub Inspector of Police, Category-II is categorised in Class I, Category-II of the Tamil Nadu Police Subordinate Service Rules. As per the Rules, the appointment to the post of Sub Inspector of Police, Category-II should be either by promotion from the eligible Head Constables or by direct recruitment of persons from any other class or category of Tamil Nadu Police Subordinate Service Rules or recruitment from any other service by transfer. 2.3. As per the order of the Tamil Nadu Administrative Tribunal in O.A.No.9377 of 1998, the proportion for appointment by direct recruitment and promotion is in the ratio of 60 : 40. For promotion from Head Constable to Sub Inspector of Police in Category-II, there was no regular Range Promotion Board conducted by the Department every year. However, there was a Range Promotion Board in the year 1987. 2.4. The Tamil Nadu Administrative Tribunal in O.A.No.2176 of 1991 and batch cases, in the order dated 7.8.1992, has formulated a basis for the promotion between direct recruits and promotees and the said scheme framed by the Tribunal was restricted to the persons who had acted as Sub Inspectors temporarily or persons senior to them who had acted as such, among those who had appeared for 1985 selection and for those who have been acting as Sub Inspectors temporarily even before the said date. 2.5. The Range Promotion Board, which was conducted on 20.11.1991, prepared a 'C' List on merit consisting of 34 persons who were promoted as Sub Inspectors. It is stated that M/s.C.Shumugam, Sorimuthu, S.Natesan and R.Appukuttan, who have been working as Head Constables in Armed Reserve, have sought to quash the order of the Commissioner of Police dated 31.12.1991, by which a list of Head Constables of Armed Reserve, Madras City Police, fit for inclusion in the 'C' List of the Armed Reserve Head Constables fit for promotion as Sub Inspectors, in O.A.No.267 of 1992, in which there was a direction to the respondents to examine the case of the individuals on merits and file a reply to the Tribunal. 2.6. The Personnel and Administrative Department of the Government has issued G.O.Ms.No.368, dated 18.10.1993 with detailed instructions for preparation of panel for appointment by promotion/recruitment and transfer. On a challenge made by the said four persons to the Range Promotion Board conducted on 20.11.1991, the Tribunal issued direction not to conduct any Range Promotion Board and directed to appoint eligible Head Constables as Sergeants https://hcservices.ecourts.gov.in/hcservices/ (Sub Inspector of Police (Armed Police)) based on seniority. Even after such direction, no seniority list was prepared among the eligible Head Constables. 2.7. It is the complaint of the petitioner that even after such direction, the respondents have not promoted the petitioner as Sub Inspector of Police while filling up 40% vacancies available in the department and instead resorted to direct recruitment of Sub Inspectors of Police (Armed Reserve) from the open market and that was also challenged before the Tribunal in the batch of cases in O.A.Nos.5785, 6580 and 9377 of 1998. Even at the time of admission, a direction was issued to consider the case of the petitioner and others for promotion against 40% of vacancies. However, there was no order passed and therefore, the petitioner was constrained to move the Tribunal once again by filing O.A.No.7057 of 2000 for a direction to promote him as Sub Inspector of Police. 2.8. While so, under the impugned memorandum dated 12.5.2000 issued by the first respondent/Director General of Police the petitioner was directed to appear for the test for the drawal of 'C' List of Head Constables (Armed Reserve) fit for promotion as Sub Inspectors of Police (Armed Reserve) for the year 1999-2000. The memorandum of the first respondent is challenged by the petitioner on various grounds, including: (i)that by virtue of seniority, the petitioner was promoted as Sub Inspector in the year 1997 and reverted for want of vacancies in the year 1998 and if only the petitioner was directed to appear for Range Promotion Board for drawing 'C' List of Head Constables he would have been declared eligible for the post of Sub Inspector; (ii)that as per the direction of the Tribunal dated 13.9.1995 in O.A.No.1395 of 1995, etc. batch, 417 Head Constables who have put in more than six years of service in the said category were regularised as Sub Inspector of Police and they were granted all monetary benefits and that the petitioner has put in 19 years of service as Head Constable and he is also eligible to be promoted as Sub Inspector of Police without undergoing any test; (iii)that as per the memorandum, any person who has put in minimum four years of service as Head Constable is eligible to participate in the Range Promotion Board, with the result the persons like the petitioner who have put in 19 years of service are directed to compete with persons with minimum 4 years experience before the Range Promotion Board, which is discriminatory and violative of Article 14 of the Constitution of India and therefore, the conduct of the Range Promotion Board itself is an unequal fight between the juniors and https://hcservices.ecourts.gov.in/hcservices/ seniors, by which the seniors will be losing the battle for no fault of them; and (iv)that by virtue of the call made by the State Government for the post of Sub Inspector Police on 21.7.2004, the petitioner has attended written examination and he was informed that he has passed in the written examination and thereafter, the parade test was held on 22.7.2004 and in spite of the fact that on two occasions he has written examination and he has passed, the petitioner was not promoted as Sub Inspector of Police and that even though he was temporarily promoted as Sub Inspector of Police in the year 1998 and reverted as Head Constable, again in the year 2002 he was promoted temporarily as Sub Inspector, in which category he is working till date and as on date, he is working as Sub Inspector of Police SB-CID, Security Branch, Chennai – 600 002. 3.1. In the counter affidavit filed by the respondents, it is stated that as per the Rules, namely the Special Rules for the Tamil Nadu Police Subordinate Services, which prescribes the mode of recruitment to the post of Sub Inspector of Police, the appointment is made by two modes, namely by direct recruitment and by promotion from the post of Head Constable, who satisfy the eligibility criteria, and the ratio between the direct recruits and promotees prior to 1996 was 85:15 and from 1996 onwards, it was fixed as 60:40. 3.2. It is stated that for the purpose of promotion, the eligible Head Constables should participate in the tests, viz., written test, drill test and viva-voce test and secure the required cut-off marks, as prescribed in each Range as per the estimate of vacancies. The 'C' List containing the names of successful Head Constables will be approved by the Range Deputy Inspector General of Police/City Commissioner of Police concerned and promotions to the post of Sub Inspectors of Police on regular basis would be made from the persons included in the 'C' List as per seniority and therefore, according to the respondents, except this method, there is no method to give regular promotion to the post of Sub Inspector of Police as per the Special Rules for the Tamil Nadu Police Subordinate Service. 3.3. It is also stated that the Tribunal in O.A.No.2176 of 1991, etc. batch, in the order dated 7.8.1992, has held that regular promotion of Head Constable as Sub Inspectors is not based on seniority and qualifying service of four years as Head Constables is prescribed and all those persons who have completed four years are eligible to appear for selection. The Tribunal further held that selection has been solely based on the tests, viz., the written test followed by viva-voce test and drill and therefore, the promotion is made as if it is direct recruitment except to the effect that persons eligible are those who have worked as Head Constables for four years https://hcservices.ecourts.gov.in/hcservices/ and directed to regularise the services as a one time measure depending upon the situation prevailing at that time. It is stated that the Tribunal, in that batch of cases, had directed to regularise the services of the applicants therein as Sub Inspectors of Police without undergoing any written or viva-voce test, etc., subject to various conditions and that order is not applicable to the writ petitioner. 3.4. It is stated that the Promotion Boards are conducted regularly from 2000 for each range and the 'C' List of Head Constables (Armed Reserve) fit for promotion as Sub Inspectors of Police (Armed Reserve) are drawn for respective ranges as per Rule 3 of the Special Rules for Tamil Nadu Police Subordinate Services and there is no State-wise seniority list required under the said Rules, but only range-wise lists are drawn and there has been no encroachment made in the quotas fixed. 3.5. It is stated that even though the petitioner was promoted temporarily as Sub Inspector of Police in the year 1997 and was reverted in 1998, he was again promoted temporarily as Sub Inspector in 2002 and he was not denied any permission to appear for the Range Promotion Board. 3.6. It is stated that the direction given by the Tribunal in O.A.No.2176 of 1991, etc. batch was at the then existing circumstance and the said direction is not applicable now. The circumstance then existing was that the Range Promotion Board test was not conducted since 1985 and therefore, the direction given therein is not applicable to the present case of the petitioner and the Promotion Board has been held regularly every year from 2000. 3.7. It is stated that the petitioner has participated in the promotion test for the year 2003 held on 22.7.2004 and he also took part in the drill test and viva-voce and secured total marks of 49.7, while the cut-off mark for the year 2003 was 70.8, and as such he did not succeed in the Promotion Board for promotion as Sub Inspector of Police (Armed Reserve). Similarly, he had participated in the written test for the year 2002 and as he did not obtain minimum marks, he was not qualified for the drill and viva-voce tests. However, temporary promotion was given to him under Rule 15 of the Special Rules of the Tamil Nadu Police Subordinate Services with condition that the promotion is purely temporary and that he will be reverted at any time without assigning any reason whatsoever. It is also stated that the petitioner has not participated in the promotion test for the year 2004, though he was invited and the non participation in test is on his own accord, for which the system cannot be blamed. 4. In respect of the conducting of Range Promotion Board tests, namely the written test and viva-voce examination, including drill https://hcservices.ecourts.gov.in/hcservices/ test to Head Constables/Head Constables (Armed Reserve) for promotion as Sub Inspectors of Police/Sub Inspectors of Police (Armed Reserve), under Rule 3(d)(iii) of the Special Rules for the Tamil Nadu Police Subordinate Service, the Government in G.O.Ms.No.1055, Home (Police.III) Department, dated 1.11.2006 has deleted the said provision directing that the promotion from Head Constable to Sub Inspector of Police be granted based on seniority and service records. 5. The petitioner was temporarily promoted as Sub Inspector of Police (Armed Reserve) by the order of the Commissioner of Police dated 1.1.1998 along with 54 other persons. On the same day, another batch of persons were also promoted as Sub Inspectors of Police. The petitioner's rank was HC 4584. One Sorimuthu, who was promoted on the same day, with Rank HC6855, who was also subsequently reverted as Head Constable, has approached this Court by filing W.P.No.6956 of 2006 challenging the order of the Commissioner of Police holding that he was not eligible for regular promotion as Sub Inspector of Police with effect from the original date of his promotion. In the light of the observation made by the Tribunal in O.A.No.5958 of 1998, this Court, in the order dated 27.6.2008, has passed the following order: "9. In view of the above position the writ petition is allowed the impugned order is set aside, and the respondent is directed to issue orders confirming the promotion of the petitioner as Armed Reserve Sub Inspector of Police with effect from 13.1.1998 and to give him all consequential benefits such as seniority, all other service and monetary benefits etc. The said exercise shall be completed within a period of six months from the date of receipt of a copy of this order." by allowing the writ petition conferring all consequential benefits with a direction to promote him from the original date of promotion before reversion. 6. Inasmuch as the petitioner is admittedly placed similar to that of the said S.Sorimuthu, who along with the petitioner has, in fact, jointly filed O.A.No.5785 of 1998 on the file of the Tamil Nadu Administrative Tribunal, wherein the Tribunal has passed orders directing the claim of the petitioner as well as S.Sorimuthu and others to be considered as against 40% vacancies, I am of the considered view that there is no need to take a different stand insofar as it relates to the petitioner. The petitioner is also placed in seniority list at S.No.32 in Annexure-II. Under such circumstances, taking note of the facts that subsequently the Government itself has deleted the provision of effecting promotion on the basis of Range Promotion Board tests and directed to issue promotion on the basis of seniority and service records, that it is the admitted case that the petitioner is senior; and that there is no question raised about the service records of the petitioner, this writ petition is allowed and the memorandum issued https://hcservices.ecourts.gov.in/hcservices/ by the first respondent stands set aside and the respondents are directed to confirm the promotion given to the petitioner as Sub Inspector of Police (Armed Reserve) with effect from 1.1.1998 and confer all consequential service and monetary benefits. The said exercise shall be completed within a period of six months from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Director General of Police Mylapore, Chennai – 600 004. 2. The Commissioner of Police Office of the Commissioner of Police Egmore, Chennai – 600 008. W.P.No.32624 of 2004 MP (CO) RH (15.2.11) https://hcservices.ecourts.gov.in/hcservices/