IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.04.2010 CORAM: THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN WRIT PETITION No.1305 of 2010 and W.P.M.P.No.1 of 2010 Union of India, rep. by the Ministry of Home Affairs, North Block, New Delhi 110 001. ... Petitioner Versus 1. Mr.John Nicholson, IPS, Deputy Commissioner of Police, Salem City, Tamil Nadu. 2. Union Public Service Commission, rep. by its Secretary, New Delhi. 3. The State of Tamil Nadu, rep. by its Secretary to Government, Home Department, Fort St. George, Chennai – 600 009. 4. The Director General of Police, Santhome, Chennai-600 004. 5. Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai-600 104. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for the records relating to the order dated 16.09.2009 of the Central Administrative Tribunal, Madras Bench, the 5th Respondent herein, made in O.A.No.183 of 2009 and quash the same. For Petitioner .. Mr.P.Mahaadevan, SCGSC. https://hcservices.ecourts.gov.in/hcservices/ For Respondents .. Mr.Vijay Narayan, Senior Advocate for Mr.R.Parthipan for R1. Mr.K.Sridhar for R2. Mrs.Malarvizhi Udayakumar, Spl.G.P. for R3 and R4. O R D E R M.Sathyanarayanan, J The first Respondent in O.A.No.183 of 2009 is the petitioner herein and aggrieved by the order dated 16.9.2009 made in the above said Original Application under which, the Official Respondents were directed to revise the first Respondent’s year of allotment of Indian Police Service as 1996 by placing him immediately below Thiru.R.Thirugnanam (Serial No.111 in the list of Officers of Indian Police Service borne on Tamil Nadu Cadre as on 01.07.2009), had filed this writ petition. 2. The facts necessary for the disposal of this writ petition are as follows:- The first Respondent herein joined the services of Tamil Nadu Police as Sub-Inspector of Police on 02.11.1979. The first Respondent appeared in Group I Service Examination conducted by the Tamil Nadu Public Service Commission during the year 1985-86 and according to him, he was not selected on account of various deficiencies and irregularities in the process of selection. 3. The first Respondent aggrieved by his non selection, has approached the Tamil Nadu State Administrative Tribunal by filing Original Application No.72 of 1989 along with other unselected candidates and it was dismissed. The first Respondent herein has preferred a Review Application in R.A.No.124 of 1995 to review the order passed in O.A.No.72 of 1989. 4. The Tamil Nadu State Administrative Tribunal by its order dated 6.5.1997, has allowed the Review Application and directed that the first Respondent has to be included in the selection list of Deputy Superintendent of Police for the year 1985-86 and made it clear that his seniority is to be reckoned from the date of his posting. 5. The above order passed by the Tamil Nadu State Administrative Tribunal was implemented and the first Respondent was appointed as Deputy Superintendent of Police Category I, on 24.12.1997. https://hcservices.ecourts.gov.in/hcservices/ 6. The batch mates of the first Respondent had joined the service on 16.03.1987. However, the first Respondent’s seniority was not fixed on par with his batch mates who were selected in the year 1985-86 by the Tamil Nadu Public Service Commission. 7. The first Respondent aggrieved by the non-fixing of his seniority on par with his batch mates, had approached the Tamil Nadu State Administrative Tribunal once again by filing Original Application No.7653 of 2001. The Tribunal vide its order dated 26.03.2002, has allowed the application and ordered the fixation of the seniority of the first Respondent on par with his batch mates. 8. The State of Tamil Nadu aggrieved by the order passed by the Tribunal in O.A.No.7653 of 2001, had filed writ petition in W.P.No.13502 of 2003 on the file of this Court and the said writ petition was dismissed by this Court on 13.04.2005. 9. Consequent upon the dismissal of the writ petition, the third Respondent herein had implemented the orders of this Court by passing an order in G.O.Ms.No. 471 Home (Police.1A) Department, dated 14.6.2006. Under the said order, the first Respondent was placed as the last person i.e. 17th rank in the selection list for the year 1985-86 of the Deputy Superintendent of Police, Category-I. Consequent upon the said placing, the first Respondent was given promotion as Additional Superintendent of Police with effect from 1.7.1995 and as Superintendent of Police with effect from 15.09.1997 on par with his batch mates by taking into account the date of entry into service of his batch mates on 16.03.1987 and it was also reckoned for the purpose of seniority. 10. By that time, the juniors of the first Respondent had been appointed to IPS under Indian Police Service (Appointment by Promotion) Regulations 1955. Therefore, the first Respondent submitted number of representations to the third Respondent to conduct a Review Selection Committee Meeting for the purpose of appointing him to the Indian Police Service under the above said Regulations and placed him in 1996 IPS batch below Thiru.R.Thirugnanam. 11. The third Respondent vide letter dated 27.6.2007 addressed to the Ministry of Home Affairs, had proposed to place the name of the first Respondent in the 1996 list of IPS Officers, below Thiru. R.Thirugnanam. 12. The fourth Respondent in his letter dated 10.09.2007, had informed the first Respondent that his request is being considered for inclusion in the IPS select list of the year 2007. https://hcservices.ecourts.gov.in/hcservices/ 13. However, to the shock and surprise of the first Respondent, the third Respondent in its communication dated 30.10.2007, had taken the stand that the date of appointment of the first Respondent on 16.03.1987 as Deputy Superintendent of Police cannot be reckoned for the seniority and therefore, he is not entitled to get the Review of the Selection made to IPS. The first Respondent has submitted a representation dated 9.11.2007 to the third Respondent praying that his case has to be considered for inclusion in the select list of 2005, pending constitution of the Review Selection Committee to review the select list of 2000. Similar representation was also submitted to the second Respondent on 13.12.2007. 14. On 14.03.2008, the petitioner herein published a notification, wherein the first Respondent was included in the select list for the year 2007 and appointed the first Respondent to the Indian Police Service and allocated him to the Tamil Nadu cadre under sub-Rule (1) of Rule 6 of Indian Police Service (Cadre) Rules 1954. The third Respondent in the meantime, had sent a communication stating that the first Respondent was selected to IPS and he was given the year of allotment in the year 2002. 15. The first Respondent aggrieved by the above said fixation, has filed O.A.No.183 of 2009, praying for appropriate direction directing the Respondents therein to fix his year of allotment of Indian Police Service as 1996 by placing him immediately below Mr.R.Thirugnnam and for appropriate orders. 16. The petitioner herein who is arrayed as the first Respondent in the above said application, had filed its counter contending that the calculation for determination of the year of allotment of an officer appointed to Indian Police Service by promotion from the State Police Service, is not an independent exercise but depends upon two factors i.e. the year of the select list from which an officer is appointed to IPS and his date of appointment in the said police service on a post equivalent to Deputy Superintendent of Police. It is further contended that the year of allotment of the first Respondent herein was fixed as 2003 by taking into account that he had rendered 8 years and 11 months of service in the State Police and hence he was given four years weightage which was deducted from the year of select list (2007) and consequently his year of allotment was fixed as 2003. It is further contended in the counter that as per the 3rd proviso to Rule 5(2) of IPS (Appointment by Promotion) Regulations, 1955, the committee shall not consider the case of a member unless he has completed not less than 8 years of continuous service (whether officiating or substantive) in the post of DSP and it means actual rendering of the service and not his notional service. It is the further contention of the petitioner herein/first Respondent in the O.A. that importance of the actual experience earned by an officer as the member of State Police Service is further https://hcservices.ecourts.gov.in/hcservices/ reflected in the said provisions as he has to deal with situations which require expertise and that can be acquired only by rendering actual service. Since the first Respondent herein did not earn such experience, his claim for fixation of year of allotment as 1996 cannot be considered and for the said reasons, the first Respondent in the said O.A. prayed for dismissal of the Original Application. 17. The Central Administrative Tribunal, Madras Bench, vide order dated 16.09.2009 held that since the date of appointment of the first Respondent was construed as 16.3.1987, his seniority was reckoned from the said date for all purposes and on the said date, his batch mates of 1985-86 joined in the Police Training College. The Tribunal further observed that the first Respondent in a normal course ought to have been selected and joined along with the other individuals in the year 1985-86 as a Deputy Superintendent of Police but for the various deficiencies and irregularities in the process of selection to Group-I services conducted by the Tamil Nadu Public Service Commission. 18. The Tribunal has also taken into consideration the order dated 13.4.2005 passed by a Division Bench of this Court in W.P.No.13502 of 2003 filed by the State of Tamil Nadu represented by its Secretary to Government, Home Department, wherein the order passed by the Tribunal in granting full benefits to the first Respondent consequent to his inclusion in the select list for the year 1985-86 came to be upheld. 19. The Tribunal further taken into consideration the G.O.Ms.No.471 Home Department dated 16.6.2006, wherein the first Respondent was promoted as Additional Superintendent of Police by taking into consideration his period of appointment as 16.3.1987. 20. The Tribunal also found that the State Government itself by a letter dated 27.6.2007 has sent a positive recommendation to the Government of India to fix the year of allotment as 1996 to the first Respondent and place him immediately below Thiru.R.Thirugnanam. The Tribunal has also noted that the State Government by another communication dated 30.10.2007 withdrawn the said recommendation on the ground that it was premature and expressed its surprise about the said communication. 21. The Tribunal after taking into consideration the various orders passed by the Tribunal the order passed by the Division Bench of this Court (cited supra), upheld the claim of the first Respondent herein and fixed his year of allotment as 1996 in the Indian Police Service with a further direction to place him immediately below Thiru.R.Thirugnanam. The first Respondent in the O.A, aggrieved by the same, had filed this writ petition. 22. Heard the submissions of Mr.P.Mahadevan, learned Senior https://hcservices.ecourts.gov.in/hcservices/ Central Government Standing Counsel appearing for the petitioner and Mr.Vijay Narayan, learned senior counsel appearing for the first Respondent and Mr.K.Sridhar, learned counsel appearing for the second Respondent and Mrs. Malarvizhi Udayakumar, learned Special Government Pleader appearing for Respondents 3 and 4. We have also perused the materials available on record in the form of typed set of documents filed by the petitioner and the first Respondent. 23. The narration of the above said facts would disclose that the third Respondent herein vide G.O.Ms.No.471 Home (Police-1A) Department, dated 16.6.2006 has relaxed Rule 4E of Special Rules for the Tamil Nadu Police Service and Rule 3 of Adhoc Rules for the post of Superintendent of Police (Non-cadre) and passed the following order: “7. Consequent on the relaxation of the Rule ordered in para 6 above, the Government direct that Thiru.Y.John Nicholson be included as Sl.No.3A in the panel of Deputy Superintendent of Police (Category.1) below his immediate senior Thiru R.Thirugnanam (Sl.No.3) and above his immediate junior Thiru R.Muthusamy (Sl.No.4) for the year 1994-1995 approved in G.O.Ms.No.1017, Home (Police-2) Department, dated 23.7.1996 and Thiru.Y.John Nicholson be included as Sl.No.9A in the panel of Additional Deputy Superintendent of Police (Category.1) fit for promotion as Superintendent of Police (Non Cadre) below his immediate senior Thiru R.Thirugnanam (Sl.No.9) and above his immediate junior Thiru R.Perumal (Sl.No.10) for the year 1997-1998 approved in G.O.Ms.No.1095, Home (Police-1A) Department, dated 28.7.1997. 8. Consequently, Thiru Y.John Nicholson is eligible for fixation of pay in the post of additional Superintendent of Police (Category.1) and Superintendent of Police (Non Cadre) as per ruling 17 under FR 27. “ 24. The first Respondent thereafter submitted number of representations to the third Respondent herein praying for appointment/confirmation on IPS on par with his batch mates of 1985- 86. The fourth Respondent viz., the Director General of Police of Tamil Nadu Police in his letter dated 8.5.2007 addressed to the third Respondent has also recommended his case subject to the decision that may be taken in consultation with the Ministry of Home Affairs of Government of India and UPSC. 25. The third Respondent viz., the Secretary to the Government https://hcservices.ecourts.gov.in/hcservices/ of Tamil Nadu, Home Department, in his letter No.21938/Pol.1A/2007-3, dated: 27.6.2007 addressed to the first Respondent has also sought concurrence of the Government of India with regard to the proposal of fixing the year of allotment as 1996 regarding first Respondent and placing him below Thiru.R.Thigugnanam, IPS, by giving the deemed date of appointment as Deputy Superintendent of Police, Additional Superintendent of Police and the Superintendent of Police. The first Respondent thereafter, submitted number of representations praying for fixing of his year of allotment as 1996 by conducting Review Selection Committee Meeting at the earliest enabling him to get promotion on par with his batch mate viz.,Thiru.R.Thirugnanam, IPS. 26. However, the third Respondent in the letter dated 30.10.2007, addressed to the first Respondent, has informed him that the question of conducting of the Review Selection Committee for the year 2000 to consider his case does not arise since, for fixing the year of allotment, an officer should have been appointed to IPS which is missing in his case. Therefore, the aspect of fixing the year of allotment will be taken up with the Ministry of Home Affairs, Government of India after appointment as IPS in the select list. 27. The first Respondent was ultimately appointed to IPS in terms of Indian Police Service (Appointment by Promotion) Regulations 1955 vide notification dated 14.3.2008 issued by the first Respondent and he was putting in the select list of the year 2007. The third Respondent in turn had sent a communication to the first Respondent informing him that his year of allotment is fixed as 2003. 28. The first petitioner vide order dated 28.1.2009 has placed the first Respondent below Thiru.R.Sudhakar (Regular Recruit of the year 2003) and above Dr.K.A.Senthil Velan (Regular Recruit of the year 2004) in the promotion list of IPS Officers of Tamil Nadu Cadre. 29. The grievance of the first Respondent was that even though the third Respondent in G.O.Ms.No.471, dated 16.6.2006, has specifically stated that he is placed below his immediate senior Thiru.R.Thirugnanam and above his immediate junior Thiru.R.Muthusamy for the year 1994-1995, the consequential benefits have not been conferred on him. The said G.O. is taken into consideration, he should have been placed below his batch mate Thiru.R.Thirugnanam, who belongs to 1996 IPS batch. 30. It is also the contention of the first Respondent that he was conferred with consequential benefits pursuant upon the Tribunal and Court orders and it sought to be negated by taking hyper technical stand which on the face of it, is wholly unsustainable. 31. In so far as the contention of the petitioner herein is that https://hcservices.ecourts.gov.in/hcservices/ he the first Respondent by virtue of the impugned order supersedes 57 IPS Officers, it is submitted on behalf of the first Respondent that none of the 57 officers even though aware such development, had approached the Tribunal/Court. 32. As regards the submission made by the learned counsel appearing for the petitioner that the first Respondent should have rendered actual service and that the notional service cannot be taken into consideration for fixation of year of allotment, it is contended on behalf of the first Respondent that reliance was placed upon the judgment of the Hon’ble Supreme Court of India, reported in 2000(3) SCC 553 –Union of India vs. K.B.Rajoria, wherein it has been held as follows:- “ Third, the High Court erred in construing the words “regular service in the grade” as actual physical service. If that were so, then an ad hoc appointee who actually serves in the post could also claim to be qualified to be considered for the post of Director General. The High Court itself held that “ad hoc service rendered by any of the parties would not count towards eligibility”. It is nobody’s case that the notional promotion granted to Krishnamoorti was “irregular”. By giving him notional promotion as Additional Director General with effect from 22-2-1995, Krishnamoorti was in fact regularly appointed to the post on that date. In the context of this case, the High Court erred in equating the words “regular service” with “actual experience” relying on the decision in Union of India and others v. M. Bhaskar and others – 1996 (4) SCC 416. In that case the eligibility criterion expressly was of “completion of 2 years’ experience in Grade II”. The case is therefore entirely distinguishable”. The point for consideration is: Whether the order passed by the Tribunal in fixing the year of allotment of the first Respondent as 1996 by placing him below his immediate senior, is sustainable? 33. It is not in dispute that in pursuant to the orders passed by the Tribunal which had been confirmed by the Division Bench of this Court in W.P.No.13502 of 2003, the third Respondent issued G.O.Ms.No.471, Home (Police-1A) Department, dated 14.6.2006, wherein the first Respondent was directed to be placed below his immediate https://hcservices.ecourts.gov.in/hcservices/ senior Thiru.R.Thirugnanam and above his immediate junior Thiru.R.Muthusamy for the year 1994-95 for promotion to the post of Additional Superintendent of Police and as Superintendent of Police in the same year, for the year 1997-98. It was also indicated in the said Government Order that such a placement was also approved in G.O.Ms.No.1095 Home (Police-1A), Department, dated 28.7.1997. The corollary being with the entry into service of the first Respondent on 16.3.1987 has been ratified by the above said Government Order and consequently the first Respondent is entitled to all service benefits. 34. In fact, the third Respondent herein made recommendation vide her letter dated 27.6.2007 addressed to the first petitioner proposing that the first Respondent may be given the year of allotment as 1996 by placing him below Thiru.R.Thirugnanam, IPS, because his service and seniority benefits in all categories were given in the existing vacancy with his batch mates that is giving him the deemed date of appointment as DSP, Additional SP and SP. Under the said communication, the third Respondent requested the first Respondent to obtain and communicate the concurrence of the Government of India. However, curiously the third Respondent in a communication dated 30.10.2007, addressed to the first Respondent, has informed the first Respondent that the question of conducting Review Selection Committee for the year 2000 does not arise. In the said communication, no reference has been made by the third Respondent with regard to her earlier letter dated 27.6.2007 (stated supra). 35. Admittedly, his immediate senior Thiru.R.Thirugnanam was appointed to IPS and was given year of allotment as 1996 and therefore, the first Respondent who was his batch mate is also entitled to similar benefit. 36. The submission made by the learned counsel appearing for the petitioner that the first Respondent should have the actual service and not notional service in the considered opinion of this Court lack substance for the reason that once the first Respondent was appointed to service on 16.3.1987 in pursuant to the orders passed by the Tribunal as confirmed by this Court, the natural corollary being that he is entitled to all consequential benefits flow from that orders. As already stated above, G.O.Ms.No.171, dated 14.6.2006 passed by the third Respondent also makes it very clear the said position as well as the subsequent communication dated 27.6.2007. 37. The contention put forth by the petitioner that by virtue of the impugned order passed by the Tribunal, the first Respondent is superseding 57 IPS Officers is also unsustainable as the said officers in spite of having knowledge, have not chosen to question the said orders. 38. A cursory perusal of the facts of this case would disclose https://hcservices.ecourts.gov.in/hcservices/ that the first Respondent was constrained to file case at each and every stage. The first Respondent is now aged about 55 years and he is having the balance of service of about 5 years. 39. In our considered opinion, the Tribunal has taken into consideration all the factual and legal aspects and rightly arrived at a conclusion that the first Respondent is entitled to get the year of allotment as 1996 by placing him below his immediate senior Thiru.R.Thirugnanam. 40. We, on an independent application of mind to the facts and circumstances of the present case in the light of the orders passed by the Tribunal and this Court, are of the considered opinion that there is no error or infirmity or error apparent on the face of the record in the order passed by the Tribunal and hence it warrants no interference. 41. In the result, the writ petition is dismissed and the order dated 16.9.2009, made in O.A.No.183 of 2009 passed by the Central Administrative Tribunal, Madras Bench is confirmed. In the circumstances, there will be no order as to costs. Consequently, M.P.No.1 of 2010 is closed. 42. In so far as the contention raised by the petitioner for fixing the year of allotment, only the actual service is to be taken into account and not the deemed service, we are of the view that the said issue need not be gone into in the light of the orders passed by the Tribunal and by this Court and in the light of the stand taken by the third Respondent supporting the case of the first Respondent. The said issue is left open to be decided in an appropriate case. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gr. To 1. The Secretary, Union Public Service Commission, New Delhi. 2. The Secretary to Government of Tamil Nadu, Home Department, Fort St. George, Chennai – 600 009. 3. The Director General of Police, Santhome, Chennai-600 004. https://hcservices.ecourts.gov.in/hcservices/ 4. The Registrar, Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai-600 104. 5. Ministry of Home Affairs, North Block, Union of India, New Delhi-110 001. + 1 cc to Mr.R.Parthiban, Advocate Sr 28808 W.P.No.1305 of 2010 KLT (CO) RH (16.6.10) https://hcservices.ecourts.gov.in/hcservices/