IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.4.2009 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN W.A.No.1071 of 2007 1. The Commissioner of Police Chennai Police Chennai-600 008. 2. The Superintendent of Police Crime Branch C.I.D. Northern Zone, Chennai-2. .. Appellants/ Respondents Vs. T.Dhasian .. Respondent/ Petitioners PRAYER: Against the order of the learned Single Judge dated 13.4.2006 made in W.P.No.25237 of 2005. W.P.No.25237 of 2005 presented under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for records of the respondents especially the second respondent relating to his proceeding made in R.C.No. A2/246/2373/02 dated 21.4.2003 and quash the same as null and void, illegal and invalid and consequently directing the respondents to refix the petitioners seniority on par with his junior Thiru Suyambu H.c.6654 of Chennai City police permitting him to undergo tests for further promotion as Sub-Inspector of police pursuant to crucial 2002-2003 panel fixing his name in the suitable place therein and promote him as sub-inspector of police will all attendant benefits. For Appellants : Mr.R.Thirugnanam Special Government Pleader For Respondent : Mr.A.Amalraj https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT P.JYOTHIMANI,J. The writ appeal is directed against the order of the learned Single Judge dated 13.4.2006 made in W.P.No.25237 of 2005, allowing the writ petition with a direction to the respondents in the writ petition, who are the appellants herein, to consider the claim of the writ petitioner/ respondent herein for further promotion in accordance with law. 2.1. The respondent, who was the original writ petitioner, joined service as Grade-II Police Constable on 14.10.1976 and was posted in Madras City Armed Reserve. He was promoted as Naik by the first appellant on 14.5.1980 and thereafter, he was further promoted as Grade I Police Constable on 4.9.1981 in the Armed Reserve. 2.2. According to the writ petitioner one Suyambu, who was appointed during December, 1976, was transferred from Armed Reserve to Dog Squad in the year 1982, the year in which the petitioner was also transferred from Armed Reserve to City Traffic Police against his willingness. According to him, there are no norms for the purpose of transfers to various Departments, either Dog Squad or Traffic Department and there are no guidelines. 2.3. The grievance of the petitioner is that the said Suyambu was promoted as Grade I Police Constable and Head Constable on the same day, viz., on 20.6.1984, however, the petitioner was promoted as Head Constable only on 1.8.1999. It is also the writ petitioner's case that on the basis of a representation made by one Mani, who was working as Grade II Police Constable during December, 1992, he was given double promotion as Grade I Police Constable and Head Constable with retrospective effect from 30.12.1985. According to the petitioner when he has passed all the necessary tests for the purpose of promotion to Grade I Police Constable in the Armed Reserve, he should have been promoted on par with his junior, Suyambu as Head Constable. 2.4. On the petitioner making representation, by way of grievance, to the second appellant, the second appellant has passed the impugned order on 21.4.2003 rejecting the claim of the writ petitioner stating that the said Suyambu was posted in Dog Squad as a special case, since the same was a Specialized Unit and none was willing to serve in the said Dog Squad, and therefore, he was given promotion as Head Constable. It is also stated in the impugned order that no junior to the writ petitioner was promoted as Head Constable prior to 1.8.1999, by referring to the cases of his batch- mates. https://hcservices.ecourts.gov.in/hcservices/ 2.5. It is challenging the said order, the writ petitioner has approached the Tamil Nadu Administrative Tribunal by filing O.A.No.2775 of 2003, which was subsequently transferred to this Court as W.P.No.25237 of 2005 and allowed by the learned Single Judge by order dated 13.4.2006. 2.6. The learned Judge, having considered the submission made on behalf of the writ petitioner that while the petitioner was working as Grade I Police Constable in the Armed Reserve, to which post he was promoted on 4.9.1981, and when he was transferred to Traffic Department on 19.5.1983, he was transferred as Grade II Police Constable, whereas the said Suyambu, who was also working as Grade I Police Constable, has been transferred to Dog Squad and he was given further promotion as Head Constable, and having found that paragraph (5) of the counter affidavit filed on behalf of the appellants was contrary to the records, and taking note of the fact that there has been suppression with regard to the promotion of the writ petitioner as Grade I Police Constable on 4.9.1981 and that further promotion given to a similarly situated person, viz., Suyambu, has not been conferred on the petitioner, allowed the writ petition holding that there was arbitrary exercise of powers. 3. It is clear, on fact, that while the petitioner was appointed in Armed Reserve on 14.10.1976 as Grade II Police Constable and promoted as Naik on 14.5.1980 and was also promoted as Grade I Police Constable on 4.9.1981, which fact is not in dispute, the writ petitioner was transferred to Traffic Department on 19.5.1983 and while he was transferred he was posted as a Grade II Police Constable. It is also not in dispute that while working in the Traffic Department as Grade II Police Constable, he was promoted as Grade I Police Constable on 1.8.1994 and was subsequently promoted as Head Constable on 1.8.1999. On the other hand, the said Suyambu, who was working as Grade II Police Constable in Armed Reserve on 1.3.1977 was promoted as Naik on 21.6.1981 and was subsequently drawn to Dog Squad and given promotion as Grade I Police Constable as well as Head Constable on 20.6.1984. 4. Even though it is stated in the counter affidavit that there are no rules governing the said transfers, one aspect which has been lost sight of by the learned Single Judge is that when once the writ petitioner was transferred from Armed Reserve to Traffic Department on 19.5.1983, admittedly, he was transferred and posted as Grade II Police Constable and he has never questioned that at any point of time. His further promotion as Grade I Police Constable on 1.8.1994 has also not been questioned by him. However, the promotion given to the said Suyambu on 20.6.1984 is justified by the appellants saying that, at the time, when the said Suyambu was drawn to the Dog Squad, there was no one who offered for transfer to Dog Squad, which https://hcservices.ecourts.gov.in/hcservices/ was a specialized unit and inasmuch as the said Suyambu has opted for transfer to the said Dog Squad, as a special case he was given promotion as Grade I Police Constable and Head Constable on the same day, namely on 20.6.1984. It is also no doubt true that the said Suyambu, when he was posted in Dog Squad, which is under the Local Police, has maintained his lien in the Armed Reserve. On the other hand, the writ petitioner who was transferred to Traffic Department on 19.5.1983 has not whispered against such transfer and posting as Grade II Police Constable. 5. The contention of Mr.A.Amalraj, learned counsel for the respondent that a discrimination has been shown against the respondent when compared with the said Suyambu has no basis. First of all, when such discrimination was stated to have been shown to the writ petitioner while he was transferred from Armed Reserve to Traffic Department on 19.5.1983, by posting him as Grade II Police Constable, he should have raised his objection. Having accepted the same and worked in the said capacity for nearly eleven years and having thereafter been promoted in the Traffic Department as Grade I Constable on 1.8.1994, it is too late for him to question about the arbitrariness or otherwise in denial of his promotion, especially in the circumstances that it has been the specific case of the appellants that in respect of Suyambu, he has opted to work in Dog Squad, which nobody was willing, and therefore, his case has been treated as a special category. 6. The reliance placed by the learned counsel for the respondent on the judgment of the Supreme Court in Dr.Ms.O.Z.Hussain v. Union of India, 1990 (Supp) SCC 688 to substantiate his contention of arbitrariness is not applicable to the facts and circumstances of the present case. That was a case, where, in the absence of any provision for promotion channel for Non-Medical Group 'A' Scientists in the establishment of Director General of Health Services under the Ministry of Health and Family Welfare and when such provision was available for the similarly placed officers in other Ministries, the Hon'ble Supreme Court has held that denial of promotion was not valid, as under: "7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have to benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have https://hcservices.ecourts.gov.in/hcservices/ been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenues for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be now necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate." 7. Again the judgment of the Supreme Court in State of Tripura v. K.K.Roy, [2004] 9 SCC 65, relied upon by the learned counsel for the respondent, has no application. That was a case wherein an employee was appointed to a single-cadre post with no promotional avenue and keeping in view his educational qualification, the Supreme Court held that he was entitled to two higher grades, while deprecating the failure on the part of the State to frame such a scheme, when such schemes had been framed by other States on recommendations of the Pay Commission. 8. In such view of the matter, there is absolutely no discrimination shown by the appellants and in these circumstances, it cannot be said that the original impugned order of the second appellant dated 21.4.2003 is either arbitrary or illegal, especially in the circumstances that the writ petitioner has not chosen to challenge the original order dated 19.5.1983, which he cannot do at this late point of time after nearly 26 years. In these circumstances, the writ appeal is allowed and the order of the learned Single Judge dated 13.4.2006 is set aside. No costs. Consequently, M.P.No.3 of 2007 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Commissioner of Police Chennai Police Chennai-600 008. https://hcservices.ecourts.gov.in/hcservices/ 2. The Superintendent of Police Crime Branch C.I.D. Northern Zone, Chennai-2. 1 cc to Mr.A. Amalraj, Advocate, SR. 19145 1 cc to Government Pleader, Sr. 19052 W.A.No.1071 of 2007 JSV (CO) kk 7/5 https://hcservices.ecourts.gov.in/hcservices/