IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 25442 and 28663 of 2003 1. Secretary to Government Home (Pol. II) Department Fort St. George Chennai – 9 .. 1st Petitioner in both W.P's 2. The Director General of Police Chennai .. 2nd Petitioner W.P.No.25442/03. -vs- 1. N. Natarajan 2. The Registrar Tamil Nadu Administrative Tribunal Chennai – 104 ... Respondents in both W.Ps. Petitions under Article 226 of the Constitution of India praying to issue a writ of Certiorari to quash the impugned orders passed by the Tribunal in O.A. Nos. 4102 of 2000 and 2350 of 2001 respectively dated 02.4.2002. For Petitioners : Ms. Geetha Thamaraiselvan, GA For Respondent 1 : Mr. K. Venkataramani, SC for Mr. M. Muthappan COMMON ORDER K. CHANDRU, J. Heard the arguments of Ms. Geetha Thamaraiselvan, learned Government Advocate representing the petitioners and Mr. K. Venkataramani, SC for Mr. M. Muthappan, learned counsel for the first respondent and have perused the records. 2. Aggrieved by the orders of the Tribunal dated 02.4.2002 made in O.A. Nos. 4102 of 2000 and 2530 of 2001, the Government of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu has filed W.P. Nos. 25442 of 2003 and 28663 of 2003 respectively. 3. At the time of admission of the writ petitions, this Court had granted stay on 11.9.2003 and 14.10.2003 respectively in both the writ petitions. The first respondent in both the writ petitions is the same person. 4. O.A. No. 4102 of 2000 was filed by the first respondent before the Tamil Nadu Administrative Tribunal seeking for a direction to consider his case for including his name in the panel of Inspector of Police fit for appointment by recruitment by transfer as Deputy Superintendent of Police [DSP], Category – I of the year 1994-95 and consequently to promote him as DSP in the same year. 5. A reply affidavit was filed by the petitioner State stating that there were several charges pending against the first respondent from the year 1994-95 till 1997-98 and the first respondent had also suffered several punishments in the disciplinary proceedings initiated against him. It was specifically averred that applying the Government guidelines with reference to promotion, he cannot be included in the panel fit for appointment. His ACR notings were also bad and they were also communicated to him at the appropriate time. 6. The Tribunal, by its order dated 02.4.2002 in O.A. No. 4102 of 2000 extracted all the punishments imposed on the first respondent but, yet, in paragraphs 5, 6 and 8, it stated as follows: Para 5: "From 1994-95 to 1996-97, there is justification for denying promotion. But during 1997-98, I find that a punishment of Censure was imposed on 13.1.97. That Censure has no currency as per the notification dated 10.6.98 in Government Letter No. 2568/S/98-1. It is true that it has been revived again as a punishment on 1.10.99 as per Government letter No. 52716/S/99-1. Para 6: Therefore, the Censure imposed on 13.1.97 also cannot be put against the petitioner. As regards P.R. Nos. 143/92 and 175/92, they have also been dropped on 17.4.98. Therefore, from the records, it is seen that the petitioner is eligible for inclusion of his name during the year 1997-98. In paragraph 3 of the Counter, it is further stated that his name was not included in the panel for the year 1994-95 and also in subsequent panels in view of the punishments imposed on him for the proved delinquencies. As we have already seen, though some punishments have been imposed, they cannot be taken into account for giving promotion." Para 8: "In the circumstances, the petitioner's name shall be https://hcservices.ecourts.gov.in/hcservices/ added in the panel of Inspectors fit for promotion as Deputy Superintendent of Police, for the year 1997-98. The promotion should be given to him from the date on which his immediate junior was promoted. He shall be entitled to all the service benefits from the date of his junior was promoted. But, however, the salary payable to him shall be paid to him only from the date he assumes the charge as Deputy Superintendent of Police. His pay shall be fixed taking into account that he has got promotion from the date on which his junior was promoted." [Emphasis added] 7. The other Original Application being O.A. No. 2350 of 2001 seeking to set aside the order dated 22.11.2000 and claiming for inclusion in the panel fit for promotion for the year 1998-99, was dismissed by the Tribunal since the relief was granted in O.A. No. 4102 of 2000. However, a further direction was given to the petitioner State to implement the earlier order within 5 months. 8. The Tribunal was wrong in granting such a direction for inclusion of the name of the petitioner in the panel fit for the post of DSP. Subsequent to an interim order passed in O.A. No. 4102 of 2000 dated 11.9.2000, the Government passed an order taking a specific stand which reads as follows: "The Government have carefully examined the case with reference to the Tamil Nadu Administrative Tribunal's interim order dated 24.7.2000 as subsequently amended by its order dated 11.9.2000 to consider the claim of the applicant (Thiru N.Natarajan, Inspector of Police) for promotion as Deputy Superintendent of Police, Category (1) temporarily by including his name in the panel of the year 1998-99 and give him promotion if he is found suitable in other respects. The Director General of Police has reported that Thiru. N. Natarajan Inspector of Police was having an adverse entry in the ACR for the period from 22.4.98 to 31.01.99. The Government, have therefore, decided to reject his claim for inclusion in the said panel. Accordingly Government direct that the claim of Thiru N. Natarajan, Inspector of Police for inclusion of his name in the panel of Deputy Superintendent of Police, Category (1) for the year 1998-99 be rejected." [Emphasis added] 9. It must be stated here that it is one thing that the name of the first respondent be included in the panel fit for promotion and the other thing is to grant actual promotion on the sole reason that his name was in the panel. Ultimately, it is for the State to https://hcservices.ecourts.gov.in/hcservices/ evaluate the overall record of any aspirant and then consider the said case for promotion. The order of the Government relied on by the first respondent before the Tribunal was merely guidelines and in observing those guidelines, the State cannot be compelled to take a particular view based upon hypertechnical grounds. Further, the very same guidelines also dealt with as to how adverse entries in the ACR are relevant to be considered for promotion. 10. In the present case, the petitioner State had taken into account all relevant circumstances and held that for the period from 22.4.1998 to 31.01.1999, there were adverse entries against the first respondent in his ACR and, therefore, his case cannot be considered. The Tribunal largely went by the nature of punishment and charge- memo, if any, pending against the first respondent. The Tribunal lost sight of the fact that apart from the pendency of disciplinary proceedings, the notings in the ACR of any candidate are also relevant for considering his case for promotion. The present case involves selection process and it is done through appointment by transfer. Therefore, the record of a candidate is very much relevant while considering the case for promotion. 11. Mr. K. Venkataramani, learned Senior Counsel pressed into service a judgment of the Division Bench in his support in W.P. No. 14052 of 2004 [The Secretary to Government, Home Department, Government of Tamil Nadu and another v. T.K. Damodharan], disposed on 15.6.2004. We do not think that this judgment is of any assistance to the first respondent since in that order, this Court did not deal with a case involving any adverse entry against any person being a disqualification but was largely concentrated on the interpretation of the Government's guidelines in G.O. Ms. No. 368 P&AR Department dated 18.10.1993 with regard to pendency of disciplinary proceedings and punishments alone. 12. In the present case, when the first respondent was informed about the State's inability to promote him by G.O. Ms. No. 1269 dated 22.11.2000 which became subject matter of challenge in O.A. No. 2350 of 2001, the Tribunal instead of dealing with the reason found in the said order, simply, gave a direction to promote the petitioner within five months on the basis of its earlier order made in O.A. No. 4102 of 2000. That order of the Government came to be passed on an interim direction issued by the Tribunal and the reason given in that order was not considered properly by the Tribunal. 13. We do not think that the first respondent made out any case for including his name in the panel fit for promotion for the post of DSP considering the number of punishments imposed on him as well as the adverse entries made in his ACR. Considering the fact that the services of the petitioner is an Uniformed Service and should be a disciplined force, we do not think that the Tribunal should adopt any hypertechnical approach. The desirability and suitability of a https://hcservices.ecourts.gov.in/hcservices/ person to hold an higher post should be largely left to the discretion of the authorities. If the authorities had come to the conclusion that the first respondent was not fit for promotion to an higher post, in the absence of any materials, the Tribunal ought not to have granted any positive direction for promotion and that too, within a time frame fixed by the Tribunal. We feel that the Tribunal had exceeded its jurisdiction in making a judicial review of an administrative action. Accordingly, we are persuaded to interfere with the orders passed by the Tribunal. 14. In the light of the same, both writ petitions will stand allowed and the impugned orders of the Tribunal dated 02.4.2002 in O.A. Nos. 4102 of 2000 and 2350 of 2001 will stand set aside. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri To 1. The Secretary to Government Home (Pol.II) Department Fort St. George, Chennai - 9. 2. The Director General of Police, Chennai. + 2 CC to the Government Pleader SR NO.16424,16422 + 1 CC to Mr. T. Ayngaraprabhu Advocate SR NO.16208 Pre-Delivery Common Order in W. P. Nos. 25442 and 28663 of 2003 SSK(CO) JJM(28/03/08) https://hcservices.ecourts.gov.in/hcservices/