IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.1815 of 2007 V.Vanniaperumal Petitioner vs. 1.The State of Tamilnadu represented by its Secretary to Government, Home Department, Fort St. George, Chennai-600 009. 2.The Director General of Police, Chennai. 3.The Deputy Inspector General of Police, Villupuram. 4.The Superintendent of Police, Tuticorin District. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records on the file of the second respondent in his proceedings Rc.No.267423/NOS IV(1)/2006 dated 31.1.2006 and quash the same and direct the respondents to promote the petitioner as Sub Inspector of Police with effect from the date of promotion given to his Juniors (i.e.) 1.6.2004 with all benefits by including his name in the "C" list of Head Constables fit for promotion as Sub Inspector of Police for the year 2002 at appropriate place, without insisting the petitioner to attend the range promotion Board in the light of the Orders passed by the Tamilnadu Administrative Tribunal in O.A.No.5455/98 dated 14.2.2001 which was affirmed by the Division Bench of Madras High Court in W.P.No.29862/2002 dated 22.2.2005 and also in the light of the orders of the Division Bench of Madras High Court in W.P.No.21652 of 2003 dated 18.3.2005 and also taking into account the relaxation granted to https://hcservices.ecourts.gov.in/hcservices/ many Head Constables in various Government Orders. For Petitioner : Mr..S.Selvathirumurugan For Respondents : Mr.V.Manoharan, Government Advocate. ----- O R D E R This Writ Petition is filed to issue a Writ of Certiorarified Mandamus, calling for the records on the file of the second respondent in his proceedings Rc.No.267423/NOS IV(1)/ 2006 dated 31.1.2006 and quash the same and direct the respondents to promote the petitioner as Sub Inspector of Police with effect from the date of promotion given to his Juniors (i.e.) 1.6.2004 with all benefits by including his name in the "C" list of Head Constables fit for promotion as Sub Inspector of Police for the year 2002 at appropriate place, without insisting the petitioner to attend the Range Promotion Board Test in the light of the Orders passed by the Tamilnadu Administrative Tribunal in O.A.No.5455/98 dated 14.2.2001 which was affirmed by the Division Bench of this Court in W.P.No.29862/2002 dated 22.2.2005 and also in the light of the orders of the Division Bench of this Court in W.P.No.21652 of 2003 dated 18.3.2005 and also taking into account the relaxation granted to many Head Constables in various Government Orders. 2. Petitioner joined the services in the Police Department as Grade-II Police Constable. While serving as Grade-I Police Constable, petitioner was dismissed from service on 18.6.1998 on the grave charges of corruption. Petitioner challenged the order of dismissal in O.A.No.5455 of 1998 and the order of dismissal was set aside by the Tamilnadu Administrative Tribunal on 14.2.2001. Consequent to the order of the Tribunal, petitioner was reinstated into service without backwages on 17.4.2001. Petitioner claimed backwages by filing Contempt Petition No.21 of 2002. In the meanwhile, the Department filed appeal to this Court in W.P.No.29862 of 2002 on 20.6.2002, after one year and two months from the date of reinstatement. On 1.10.2002, the Division Bench of this Court granted interim stay of the order of the Tamilnadu Administrative Tribunal passed in O.A.No.5455 of 1998. Thereafter, on 7.11.2002, the said interim stay was vacated in W.V.M.P.No.1506 of 2002. On 22.2.2005, the Writ Petition No.29862 of 2002 filed by the Department was dismissed and the order of the Tribunal in O.A.No.5455 of 1998 reinstating the petitioner was upheld. According to the petitioner, he was working from 17.4.2001 on which date he was reinstated consequent to the order of the Tribunal. The https://hcservices.ecourts.gov.in/hcservices/ grievance of the petitioner is that for the period from 14.2.2001 when the Tribunal set aside the order of the dismissal till 1.10.2002 when interim stay was passed by the Division Bench of this Court, there was no impediment in considering the petitioner's name to participate in the Range Promotion Board Test, in particular, which was conducted for the year 2002 in the subsequent year, viz., 2003. There was no impediment for the Department not to consider the name of the petitioner during the above period. In Proceedings D.O.No.1490/2002 A3/24318/2002 dated 13.9.2002, the Superintendent of Police, Thoothukudi District passed an upgradation order in respect of Grade-I Police Constables (Local) as Head Constables. In that proceedings 85 Grade-I Police Constables were upgraded as Head Constables. Insofar as the petitioner is concerned, the proceedings states as follows:- "2. The following Gr.I P.Cs. mentioned in Annexure 1 enclosed who were appointed upto 31.12.1986 are coming under the zone of consideration for the year 2002-2003. Their cases are not considered for upgradation as Head Constable due to the reasons noted against them." As per Annexure I, petitioner's name finds place at serial No.7. The reason for non-inclusion in the upgradation list is stated as follows:- "7 Gr.I P.C.1512 Vanniaperumal Removed from service w.e.f. 3.7.98 by DIG Villupuram Range in Proceedings No.B2/PR.22/98 dt.18.6.98. Reinstated on 18.4.01 as per TAT orders. Opinion for filing W.P. is awaited." The above said order, however, has not been challenged on merits. Thereafter, petitioner submitted a representation on 30.7.2005 to the Director General of Police, the second respondent and the Deputy Inspector General of Police, the third respondent to consider his case for inclusion in the "C" list of Head Constables fit for promotion to the post of Sub Inspector of Police. The reason for giving the representation is that six persons were promoted as Sub Inspector of Police with effect from 1.6.2004 and those six persons are juniors to the petitioner. Petitioner pleaded that his case has been erroneously overlooked stating that the opinion is awaited for filing writ petition. The petitioner pointed out that on 22.2.2005 the Writ Petition No.29862 of 2002 filed by the Department was dismissed and therefore, the case of the https://hcservices.ecourts.gov.in/hcservices/ petitioner should have been considered on merits. 3. Learned counsel appearing for the petitioner referred to the G.O.Ms.No.986 Home (Police III) Department dated 2.5.1988 and another G.O.Ms.No.2099 Home (Police III) Department dated 23.9.1988 and the Memorandum in R.O.No.404/90 dated 24.9.1990 issued by the third respondent, whereby similarly placed persons have been included in the "C" list for promotion to be posted as Sub Inspector of Police exempting them from appearing for the Range Promotion Board Test. Therefore, it is stated that the respondents have discriminated the petitioner in the order rejecting such representation, whereas benefits have been given to other police constables. 4. In the present case, learned counsel for the petitioner pleaded that from 14.2.2001 till 1.10.2002 there was no impediment in including the name of the petitioner in the Range Promotion Test of the year 2002 held in the year 2003. Further, on and from 7.11.2002 there was no impediment in permitting the petitioner to take part in the Range Promotion Board Test since the Division Bench of this Court has already vacated the interim stay passed against the order of the Tribunal. He also referred to the case of one T.V.Devarajan decided by the Division Bench of this Court on 18.3.2005 in W.P.No.21652 of 2003 wherein several Government Orders have been cited to show that exemptions have been granted for several similarly persons from participating the Range Promotion Board Test. 5. The Joint Secretary to Government, Home(General) Department filed a counter-affidavit on behalf of the first respondent wherein the Department has reiterated that the petitioner should undergo Range Promotion Board Test that appears to be the one and only stand taken by the respondent Department on merits. 6. In the present case, the non-inclusion of the petitioner in the proceedings dated 22.4.1986 as per Annexure-I has not been challenged on merits. In any event, after the stay was vacated on 7.11.2002, the petitioner could have made a representation or approach this Court for considering him to participate in Range Promotion Board Test as applicable then pending disposal of the writ petition. The petitioner has, however, restrained himself from coming to this Court for the reason that the writ petition filed by the Department was pending. 7. Nevertheless, as the Government granted exemption in favour of so many persons as has been pointed out by the Division Bench of this Court in W.P.No.21652 of 2003 in its https://hcservices.ecourts.gov.in/hcservices/ order dated 18.3.2005, the case of the petitioner should have been considered for exemption from participating in the Range Promotion Board Test in view of the delay caused by the Department in pursuing the matter before this Court (i.e.) the delay of more than one year and two months from 17.4.2001 to 20.6.2002. Further, the Division Bench of this Court vacated the stay on 7.11.2002. If the petitioner had been subjected to Range Promotion Board Test at that point of time as pointed out by the counsel for the petitioner, the petitioner would not have any grievance about the long delay which has caused prejudice to the petitioner. The impugned order in the present case has not considered the period during which the Department had delayed the matter from 17.4.2001 to 20.6.2002. The Department, however, exempted the Range Promotion Board Test in respect of similarly placed persons for one or other reason. 8. The grievance of the petitioner seems to be genuine that during the relevant time, viz., in the year 2002 there was no impediment for the Department not to consider the name of the petitioner for the Range Promotion Board Test. Though the proceedings dated 22.4.1986 has not been challenged, as could be seen from Annexure-I, the reason given for non inclusion seems to be that opinion for filing the writ petition is awaited, that cannot be a good ground to keep the matter pending and denying the petitioner's claim for exemption from Range Promotion Board Test. 9. In such view of the matter, considering the earlier decision of the Division Bench of this Court in W.P.No.21652 of 2003 dated 18.3.2005, the order under challenge is not justified and the matter is to be reconsidered by the Government in the light of the Division Bench Judgment referred to above and also on the basis of the plea of the petitioner on merits that is non inclusion in the "C" list for promotion to the post of Sub Inspector of Police was based on error committed by the Department not referring him to the Range Promotion Board Test from 14.2.2001 till 1.10.2002 and on and from 7.11.2002 when the stay was vacated. This factor should have been considered by the competent authority which was not done. 10. In the light of the above observations, the impugned order is set aside and the matter is remitted to the Government to reconsider the issue raised by the petitioner to include his name in the "C" list for Head Constable to the post https://hcservices.ecourts.gov.in/hcservices/ of Sub Inspector of Police in the year 2002. Such decision will be taken in the light of the Division Bench decision referred to above and appropriate orders shall be passed before the end of February, 2010. The Writ Petition is ordered as above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1.The Secretary to Government of Tamil Nadu, Home Department, Fort St. George, Chennai-600 009. 2.The Director General of Police, Chennai. 3.The Deputy Inspector General of Police, Villupuram. 4.The Superintendent of Police, Tuticorin District. +1cc to Mr.S.Selvathirumurugan, Advocate Sr 68209 +1cc to Govt.Pleader Sr 67782 BV(CO) km/18.12. W.P.No.1815 of 2007 https://hcservices.ecourts.gov.in/hcservices/