IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 21.06.2011 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.Nos.4648, 5335 and 5349 of 2011 P.G.Vijayan ... Petitioner in W.P.No.4648/2011 S.Murugaian ... Petitioner in W.P.No.5335/2011 T.Murugesan ... Petitioner in W.P.No.5349/2011 Vs. The Commissioner of Police, Coimbatore City, Coimbatore. ... Respondents in all petitions PRAYER IN ALL THE PETITIONS: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the respondent in connection with impugned order passed by him in CPO No.237/2010 in C.No.A2/9591/2010, dated 11.02.2011 and quash the same in so far as the petitioner are concerned, and grant such other relief. For Petitioner in all petitions :Mr.K.Venkataramani, SC for M/s.M.Muthappan For Respondents in all petitions :Mr.K.V.Dhanapalan, AGP COMMON ORDER As the facts leading to all the writ petitions are identical, they are disposed of by this common order. 2. For better appreciation, the facts involved in one of the writ petitions i.e., W.P.No.4648 of 2011, are briefly stated hereunder:- The petitioner-P.G.Vijayan, after entering into service as Gr.II Police Constable, District Armed Reserve on 23.12.1985, was transferred to Coimbatore City Armed Reserve in the year 1992 and again he was transferred to Law and Order in the year 1993. Whileso, https://hcservices.ecourts.gov.in/hcservices/ as per the Police Service Rules, if a Gr.II PC completes 10 years of service, he is eligible to be upgraded as Gr.I PC and similarly, if a Grade I PC completes 5 years of regular service, he is eligible to be upgraded as Head Constable and 10 years of service thereafter, he is eligible to be upgraded as Special Sub Inspector of Police. With these principles, when the petitioner has completed 10 years of service as Gr.II PC, he was upgraded as Gr.I PC by order dated 28.10.1997 with effect from 01.10.1997 and thereupon, he was also granted selection grade pay with effect from 01.04.1997 and from 01.10.1997, he was paid with a salary of Gr.I PC. Again, on completion of 5 years service in Grade I PC, he was upgraded as Head Constable on 22.07.2002 and upon his up-gradation, he was also paid arrears of pay and allowances separately. Further, it was stated that during the year 1987, the petitioner was awarded with a punishment of cessation of probation and discharged from service by the orders of Superintendent of Police, Dharmapuri District, with effect from 04.09.1987 and as a result, departmental proceedings were initiated under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for disobeying the orders of Guard Officer and for absence from duty. As against that, when an appeal was filed, the said order was modified into one of postponement of next increment from the date of accrual without cumulative effect, by the Deputy Inspector General of Police, Vellore Range, in his proceedings No.B1/Ap 107/87, dated 20.03.1988 and the period of out of employment from 04.09.1987 to 01.04.1988 was ordered to be treated as eligible leave including extraordinary leave. At this stage, when the up-gradation of the petitioner as Gr.I PC was considered in the year 1997, the punishment suffered by the petitioner was also considered, but, it was not taken into account for the reason that the said punishment did not fall within the check period. Only thereafter, the petitioner was upgraded as Head Constable with effect from 22.07.2002 and thereafter, further upgraded as Special Sub Inspector of Police with effect from 01.01.2011. All of a sudden, the petitioner was issued with impugned order dated 11.02.2011 by the respondent stating that earlier orders of up-gradation as Grade I PC/HC/SSI issued in CPO 2093/2010 and CPO 2094/2010, dated 31.12.2010 in respect of the above petitioner is cancelled and he will continue in the rank of Head Constable, until he reaches the probable date, namely, 01.07.2011. Aggrieved by the said impugned order, the petitioner has filed the present writ petition seeking to quash the same. 3. Mr.K.Venkataramani, learned Senior counsel appearing for the petitioner submitted that the impugned order passed by the respondent, after several years from the date of up-gradation of the petitioner as Grade I PC as well as Head Constable, is not only belated, but also in violation of principles of natural justice, as no notice has been issued before the cancellation of up-gradation order. https://hcservices.ecourts.gov.in/hcservices/ Adding his submission, it was further contended that the cancellation of the petitioner's up-gradation as Special Sub- Inspector of Police and consequential reversion as Head Constable by the impugned order has visited the petitioner by way of punishment, that too without any show cause notice. Had there been a show cause notice, the petitioner could have given a proper reply and that could have convinced the respondent from passing the impugned order. 4. In his further submission, he relied on a G.O.Ms.No.15, Home (Police V) Department, dated 07.01.2010, wherein it has been mentioned that the police constables, who have completed 25 years of service, are upgraded as Special Sub Inspector of Police. Similarly, in another G.O.Ms.No.13, Home Police V Department, dated 06.01.20101, the Government again ordered up-gradation of 2589 Grade II PCs, who were upgraded as Grade I PCs with effect from 22.07.1997 along with advancement of increment. Even in some cases, when large number of Head Constables, who have even completed 8 1/2 years of service, have been upgraded as SSI. Therefore, by citing the above said GO, it was contended that the impugned order passed by the respondent against the petitioner, who has completed 26 years of service from 23.12.1985 till 23.12.2010, is unsustainable in law and on that basis, he prayed for setting aside impugned order. 5. Per contra, Mr.K.V.Dhanapalan, learned Additional Government Pleader appearing for the respondent submitted that the petitioner has not completed 25 years of total service for his up-gradation to the post of Special Sub-Inspector of Police as on 23.12.2010. He has further submitted that the petitioner was appointed as Grade II Police Constable on 23.12.1985 and this being the date of entry into service as Grade II PC, he could have completed 25 years service as on 25.12.2010, provided he has not availed any leave without pay, but according to him, the petitioner has availed 183 days LWP(P) from 02.10.1987 to 01.04.1988 and the respondent mistakenly, without taking into account 183 days LWP(P) availed by the petitioner from 02.10.1987 to 01.04.1988, has upgraded the petitioner from Grade II PC to Grade I PC. Subsequently, on a revised verification of his service register, it has been brought to the notice that the petitioner has availed 183 days LWP(P) from 02.10.1987 to 01.04.1988, therefore, the date of advancement of up-gradation as Grade I PC and Head Constable have been modified with effect from 23.06.1996 and with effect from 23.06.2001 respectively by order dated 11.02.2011. In as much as the petitioner has not completed 10 years of service in the rank of Head Constable, the order of up-gradation as Special Sub- Inspector of Police cannot be legally issued. Therefore, the petitioner is not justified to come to this Court challenging the impugned order, since he has not completed 25 years of service, as he has completed only 24 years 5 months and 24 days of service as on 23.12.2010. Further, it was contended that it is also equally not proper on the part of the petitioner to say that the impugned order https://hcservices.ecourts.gov.in/hcservices/ was passed after a long delay. When the petitioner was issued with the order of up-gradation to the post of Special Sub-Inspector of Police, within 41 days from the date of passing of the order of up- gradation to the post of Special Sub-Inspector of Police, on further verification of the petitioner's service records, it was found that he has not completed 25 years of total service. Therefore, the impugned order was passed cancelling the order of up-gradation of Special Sub-Inspector of Police, therefore, it is not open to the petitioner to say that there is a violation of principles of natural justice. Once the petitioner completes 25 years of service, he would be again upgraded to the post of Special Sub-Inspector of Police. Hence, the contention of the petitioner that he has completed 25 years of service as on 23.12.2010 is factually incorrect and on that basis, he prayed for dismissal of the present writ petition. 6. Heard the learned counsel appearing on either side and perused the materials available on record. 7. The petitioner was originally appointed as Grade II Police Constable on 23.12.1985. Since G.O.Ms.No.13, dated 06.01.2010 states that the police constables, who have completed 10 years of service, can be upgraded as Grade I PC, he was upgraded from Grade II PC to Grade I PC by order dated 28.10.1997 with effect from 01.10.1997. Thereafter, he was also granted Selection Grade pay as Grade II PC with effect from 01.04.1977 and from 01.10.1997, he was paid with salary of Grade I PC. Since the Grade I PC, on completion of 5 years of service in Grade I PC, is eligible to be upgraded to the post of Head Constable, he was again, on completion of 5 years of service in Grade I PC, upgraded as Head Constable with effect from 22.07.2002 as per G.O.Ms.No.667, dated 29.07.2002 as communicated by the Director General of Police, Chennai, in his proceedings No.129295/NGB III(2)/ 2002, dated 01.08.2002. In the meanwhile, the petitioner, while serving as Grade II PC, suffered a punishment of cessation of probation and discharged from service by an order dated 04.09.1987 passed by the Superintendent of Police under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules for the delinquency of disobeying the orders of Guard Officer and for absence from duty. Aggrieved by the said order, when an appeal was filed, the said punishment was modified into one of postponement of next increment from the date of accrual without cumulative effect by the Deputy Inspector General of Police, Vellore Range, in his proceedings No.B1/Ap 107/87, dated 20.03.1988 and further, the order says clearly that the period of out of employment from 04.09.1987 to 01.04.1988 was ordered to be treated as eligible leave including extraordinary leave. Therefore, the period of unemployment during the period from 04.09.1987 to 01.04.1988 have been treated as eligible leave including extraordinary leave by the DIG of Police and the said order was also properly considered by the respondent, when he was upgraded from https://hcservices.ecourts.gov.in/hcservices/ Grade II PC to Grade I PC on 28.10.1997. Subsequently, when he has completed 5 years of service in Grade I PC, he was again upgraded as Head Constable by G.O.Ms.No.667, dated 29.07.2002, with effect from 22.07.2002. After all these were settled, when the petitioner has completed another 10 years of service as Head Constable, he was once again upgraded as Special Sub-Inspector of Police on 01.01.2011. Therefore, the reason mentioned in the impugned order for cancellation of earlier orders of up-gradation as Gr.I/HC/SSI issued in CPO 2093/2010 and CPO 2094/2010, dated 31.12.2010 stating that the petitioner will continue in the rank of Head Constable, until he reaches the probable date for his up-gradation as Special Sub- Inspector of Police without availing any LWP(P), does not stand to reason. Firstly, the petitioner, no doubt, suffered a departmental proceedings initiated under Rule 3(b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules and as a result, he was awarded with a punishment of cessation of probation and was also discharged from service by order dated 04.09.1974 passed by the Superintendent of Police for the delinquency of disobeying the orders of Guard Officer and for absence from duty. However, when the petitioner filed an appeal, the said punishment was modified into postponement of increment from the date of accrual without cumulative effect by the Deputy General of Police, Vellore Range, in his order dated 20.03.1988, by specifically stating that the period of out of employment from 04.09.1987 to 01.04.1988 was ordered to be treated as eligible leave including extraordinary leave. Therefore, when the orders passed by the Deputy Inspector General of Police, Vellore Range, dated 20.03.1988, has treated the period of out of employment from 04.09.1987 to 01.04.1988 as eligible leave, the question of excluding that period without pay is totally untenable. Secondly, when the impugned order was passed, no notice was issued. Had there been a notice to the petitioner calling upon him to submit his explanation, the petitioner could have submitted his explanation, mentioning the real fact that the period of unemployment was already treated as eligible leave by the DIG of Police, Vellore Range, in his order dated 20.03.1988. As there was no prior notice before passing the impugned order and as a result, the petitioner has been reverted from the post of Special Sub-Inspector of Police to Head Constable once again, the impugned order issued without prior notice is in violation of principles of natural justice. Thirdly, when the respondent failed to notice the period of unemployment from 04.09.1987 to 01.04.1988 when he was upgraded to the post of Grade I PC in the year 1997 as well as Head Constable in the year 2002, the said orders of up-gradation cannot be modified in the year 2011 by the impugned order, since the said modification https://hcservices.ecourts.gov.in/hcservices/ severely affect the petitioner's seniority, not only in the cadre of Grade I PC, but also in the cadre of HC. 8. In respect of W.P.No.5335 of 2011, the petitioner-S.Murugaian has suffered a departmental proceedings initiated under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for delinquency of desertion during the year 1989 and after the enquiry, on submission of the report by the enquiry officer, the Commandant, TSP, IV Battalion, Coimbatore-42, imposed a punishment of stoppage of increment for a period of one year without cumulative effect and the period of unemployment i.e., 169 days was treated as eligible leave. Therefore, the question of excluding that period of unemployment cannot be legally sustainable. 9. In respect of W.P.No.5335 of 2011, the petitioner- T.Murugesan, during the year 1990, when he was suspended from service for delinquency of desertion, departmental proceeding was initiated in PR No.154/1990 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules and imposed with a punishment of removal from service by the orders of the Deputy Commissioner of Police, Crime, Coimbatore, on 06.08.2001. Aggrieved by the said order, he preferred an appeal before the Commissioner of Coimbaore. Though his appeal was rejected on 03.02.1992, on filing review petition to the Inspector General of Police, Law and Order, Chennai, the punishment of removal from service was set aside by imposing a minor punishment of reduction of pay by two stages for one year without cumulative effect by order dated 03.08.1992 and further treated the period of suspension and out of employment from 03.08.1990 to 31.08.1992 as eligible leave including FOL to that extent necessary. Subsequently, on his reinstatement, when he made a claim for up-gradation as Grade I PC in the year 1997, the above said punishment suffered by the petitioner was also considered. When the petitioner was reinstated by treating the period of suspension and out of employment as eligible leave, it goes without saying that the said period should be counted for the purpose of giving benefit of up-gradation from Grade II PC to Grade I PC. Therefore, the question of excluding that period of unemployment cannot be legally sustainable. 10. Further, in all these writ petitions, it is also relevant to see that the petitioners have not suppressed any information, when they were upgraded as Grade I PC as well as Head Constable. Further, on consideration of the entire service records of the petitioners available with the respondent, the respondent has upgraded the petitioners. Therefore, modification of the said order, that too without notice to the petitioners, is amounting to reversion to the post of Head Constable. Therefore, the impugned order passed by the https://hcservices.ecourts.gov.in/hcservices/ respondent against the petitioners is liable to be set aside and accordingly, the same is set aside. In result, the writ petition are allowed accordingly. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar rkm To The Commissioner of Police, Coimbatore City, Coimbatore. 3 cc To Mr.M.Muthappan, Advocate, SR.35721. 1 cc To The Government Pleader, SR.35883. W.P.Nos.4648, 5335 and 5349 of 2011 SJ(CO) RVL 04.07.2011 https://hcservices.ecourts.gov.in/hcservices/