IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.02.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.30436 of 2007 P.P.Ravikumar ..Petitioner -vs- 1. The Government of Tamilnadu, Rep. by its Secretary to Government, Home Department Fort St. George, Chennai – 600 009. 2. The Director General of Police, Mylapore, Chennai – 600 004. ..Respondents Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records of the respondents, especially the first respondent relating to his proceedings made in G.O.(D) No.1374 Home (Police-3) Department dated 21.12.2006 and quash the same null and void and illegal and consequently directing the respondents to Re-fix the Petitioner's seniority in the cadre of Sub-Inspector of police giving correct placement along with the 1987 'open quota' mode of selected candidates instead of giving placement along with 1995 selected Sub- Inspectors, apart from fixing him in Category-I on the strength of marks scored by him in the final examination conducted by the Police Training College for fixation of seniority and other allied subjects upholding his right to claim all his monetary and service benefits with effect from 1987. For Petitioner : Mr.A.Amal Raj For Respondents : Mr.P.Subramanian Addl Govt. Pleader O R D E R By consent the main Writ Petition itself is taken up for disposal. The prayer in the writ petition is for issue of a writ of Certiorarified Mandamus to quash the Government order in G.O.(D) No.1374, Home Department dated 21.12.2006 and to direct the respondents to refix the petitioner's seniority in the cadre of Sub- Inspector of Police giving correct placement along with 1987 open https://hcservices.ecourts.gov.in/hcservices/ quota mode of selected candidates instead of placement along with 1995 selected Sub-Inspectors apart from fixing him in category-I on the strength of the marks scored by him in the final examination conducted by the Police Training College for fixing seniority and other benefits with effect from 1987. 2. By impugned Government order dated 21.12.2006, the petitioner's request for revision of his seniority in the post of Sub-Inspector of Police either in category-I or category-III with effect from 1987 came to be rejected by relying upon Rule 24 (A) and Rule 15 of the Special Rules for Tamil Nadu Police Subordinate Service. 3. The petitioner was enlisted as Police Constable on 28.01.1975 and promoted as Head Constable in the year 1980. During 1983, the petitioner appeared before the selection board for selection by direct recruitment to the post of Sub-Inspector of Police under open category and underwent the selection process except the viva-voice and the petitioner was found qualified in the selection, which fact has been admitted by the respondents. However, the selection was not finalized due to administrative reasons and the same set of candidates, who were selected in the 1983 selection, were directed to appear for the 1984 selection. However, the petitioner was not selected for direct recruitment to the post of Sub-Inspector in the 1984 selection on the ground that he is over aged by 22 days. According to the petitioner, the rejection was contrary to Rule 12(d) of the General Rules, since the petitioner possessed higher qualification than the prescribed qualification and therefore, the petitioner sought for age relaxation. This request made by the petitioner during 1984 was not considered and was kept pending and therefore the petitioner filed W.P.No.2123/1998, this Court by order dated 09.03.1998 directed the petitioner's request for exemption to be considered after receiving fresh copy of the representation. In the representation dated 03.09.1985, which was submitted by the petitioner seeking age relaxation, the petitioner had submitted that as per the Special Rules for Tamil Nadu Police Subordinate Service, the educational qualification prescribed for direct recruitment to the post of Sub-Inspector of Police is a degree and the upper age limit is 30 years. Though the petitioner was only SSLC failed candidate, when entered service, subsequently he completed SSLC, thereafter, he completed his graduation and also was doing his law degree. On these grounds, the petitioner sought for exemption. The Government by G.O.Ms.No.1121, Home Department dated 21.07.1993, after taking into consideration the petitioner's submissions and after finding that the petitioner was a enterprising young man, accepted the request of the petitioner, but ordered that the petitioner is permitted to appear for the selection to the post of Sub-Inspector of Police by direct recruitment in the ensuing selection (1994) and in the event of his selection, the rule relating to age shall be relaxed in favour of the petitioner at the time of his regular appointment as https://hcservices.ecourts.gov.in/hcservices/ a special case. It is relevant to note that the petitioner participated in the 1984 selection and he was not selected on account of being over aged by 22 days and he made a request for age relaxation by petition dated 03.09.1985, which came to be favourably considered only after a period of nearly 12 years in 1993, but the Government had permitted him to take part in the subsequent selection to be conducted. In fact this is a Government order dated 21.07.1993, granting age relaxation came to be passed only after the direction of this Court in W.P.No.2123/1988 dated 09.03.1988 to consider the petitioner's representation dated 03.09.1985. It is seen that after the said order, the petitioner had submitted representations on 25.07.1993, 01.09.1993, 03.02.1994, 27.02.1995, 18.03.1995, 13.04.1995, 29.10.1995, 29.11.1995 and 30.05.1996. It is submitted that in all these representations, the petitioner had requested that he may be not compelled to under go the selection process once over again, since he had already completed the selection process in 1983 scoring high marks and subsequently in 1984 also and in which he was selected and he was not appointed only on account of being over age by 22 days. It appears that these representations were not considered and therefore the petitioner without prejudice to his rights participated in the year 1994 selection. Unfortunately, the petitioner's candidature came to be rejected on the ground that he did not fulfill the height qualification, since for the first time in 1994 the norms fixing the minimum of height was increased from 168 cms to 170 cms and the petitioner was 169 cms. It is pertinent to note that the petitioner by representation dated 16.03.1994 addressed to the Tamil Nadu Uniformed Services Recruitment Board submitted that he is attending the 1994 selection without prejudice to the petition given by him requesting for exemption from under going the selection process, since he had already completed the same in 1984 itself and the petition was pending before the competent authority for orders. 3. The petitioner filed O.A.No.1462/1994 before the Tamil Nadu State Administrative Tribunal challenging his non-selection intimated vide proceedings dated 25.03.1994 and for a direction to appoint the petitioner as Sub-Inspector of Police by sending him for training without following the selection formalities. It is seen that before the Tribunal, he was already found fit to be selected in the 1984 selection itself and he should not be made to complete along with persons of age between 20 to 28 years as the petitioner had already attained the age of 42 years. The Tribunal by order dated 13.03.2002 held that the petitioner is entitled to succeed as in the 1972 publication of the Police Standing Orders part 1, the required height for selection is 5 ft. and 5½ inches only, the petitioner was directed to be appointed as Sub-Inspector within a period of three months. The Government filed W.P.No.21925/2002 before this Court challenging the order of Tribunal in O.A.No.1462/1994 dated 13.03.2002. The Hon'ble Division Bench of this Court by order dated 21.07.2003 observed that:- https://hcservices.ecourts.gov.in/hcservices/ "3. Apart from the materials relied upon by the Tribunal, we find from the records that in several cases, the height has been relaxed from 170 cm to 168 cm, which is apparent from C.O.Ms.No.134, Home (Police-II) Department, dated 31.01.1997. From the aforesaid Government Order, it is clear that in respect of 66 persons, who were below the prescribed height limit, relaxation had been made. We think keeping in view the peculiar facts and circumstances of the present case and, particularly, keeping in view the meritorious service rendered by the first respondent, it is a fit case, where notwithstanding the fact that the first respondent was below the prescribed height limit, he should have been promoted. It appears that the first respondent during his career has received several commendations for meritorious service and no punishment has been imposed on him, this would go to show the meritorious service rendered by the first respondent." and dismissed the writ petition filed by the Government. Thereafter the petitioner was appointed as Sub-Inspector of Police by an order passed by the second respondent dated 08.04.2004. The petitioner after being appointed as Sub-Inspector of Police, submitted a representation on 27.07.2004, requested that his seniority may be fixed by reckoning him with the 1984 batch in which he was found fit except on the ground of height, which also came to be set aside by the Tribunal and confirmed by the Hon'ble Division Bench of this Court. The petitioner's request was kept pending and the subsequent representations were also not considered, though it was forwarded to the second respondent through proper channel. 4. Last of such representation was given by the petitioner before the Commandant of the Tamil Nadu Special Police, Trichy, which was forwarded by the commandant to the second respondent by proceedings dated 06.09.2006, wherein the petitioner had requested for revision of his seniority in the cadre of Sub-Inspector of Police. Since no orders were passed, the petitioner filed W.P.No.37209/2006 before this Court. In the said writ petition , the petitioner prayed for a direction to pass suitable orders on his revision petition dated 13.06.2005 for refixing his seniority in the cadre of Sub-Inspector of Police by giving correct placement alongwith the 1987 open quota mode of selected candidates instead of giving placement along with 1995 selection Sub-Inspectors and for fixing him in category -I on the strength of the marks scored by him, in the final examination conducted by the Police Training College. The writ petition was disposed of by this Court by order dated 11.10.2006 and this Court after considering the entire facts and circumstances of the case held as follows:- "3. Considering the fact that in fact, the Deputy Inspector General of Police, Trichy, by letter dated 15.05.2005 has recommended that the petitioner should be included as Sub- https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police in 1984 batch, the inclusion of the petitioner in 1995 batch will not be proper. Considering the observation made by the Division Bench of this Court as stated above, recognising the meritorious service rendered by the petitioner and also taking into consideration the various grounds raised in the writ petition and the Revision Petition filed by the petitioner before the first respondent against the order of the second respondent, the first respondent is directed to consider the Revision Petition of the petitioner dated 13.06.2005 in its proper perspective and pass orders in accordance with law and in re-fixing the seniority and such orders shall be passed within a period of six weeks from the date of receipt of a copy of this order. The writ petition is disposed of accordingly. No costs. " 5. Thus, this Court while disposing of writ petition No.37209/2006 rendered a finding by stating that the inclusion of the petitioner in the 1995 batch will not be proper and this Court based its finding after considering the entire facts and circumstances as well as the recommendation of the Deputy Inspector General of Police by letter dated 15.05.2005. In fact this Court directed the first respondent to consider the revision petition in its proper prospective and pass orders in accordance with law refixing the seniority. However, by the impugned order the first respondent has rejected the revision petition filed by the petitioner. Though the petitioner had filed a contempt petition before this Court in contempt petition No.357/2007, the same was closed by order dated 20.07.2007 giving liberty to the petitioner to challenge the impugned order and therefore the petitioner is before this Court in the above writ petition. 6. The learned Additional Government Pleader appearing for the respondents would submit, by placing reliance on the counter affidavit, that the petitioner's age qualification was relaxed by the Government order dated 21.07.1993 and he was permitted to participate in the ensuing selection, (i.e.,) the selection which was conducted in 1994, and the petitioner having not questioned to the said order, namely the Government order in G.O.Ms.No.1121, is not entitled for being considered along with the 1987 batch. Further, it is contended that but for the relaxation of age granted by the Government in 1994, the petitioner could not have participated in the selection and therefore, the fixation of petitioner's seniority in the 1995 batch is proper and does not call for interference. 7. After having considered the submissions on either side, I am not convinced with the stand taken by the respondents in view of the peculiar facts and circumstances of this case, which also are not disputed. The relevant facts being that the petitioner appeared for direct recruitment to the post of Sub-Inspector in open category during 1983, under went the selection process and was found qualified https://hcservices.ecourts.gov.in/hcservices/ in the selection in 1983. This has been admitted by in the counter affidavit in paragraph 6. This selection did not fructify on account of administrative reasons and therefore the Government themselves permitted the entire batch of selectees in the 1983 selection to appear in the 1984 selection. The only disqualification, the petitioner suffered in the 1984 selection was that he was over aged by 22 days. No other reason has been assigned in the paragraph 6 of the counter for his non-selection in 1984. The petitioner submitted a representation seeking age relaxation on 03.09.1985, pointing out his educational qualification and meritorious service. This petition dated 03.09.1985 appears to have been put in a cold storage and action came to be initiated on the same only after this Court in W.P.No.21238/88 directed orders to be passed on the said petition. Even after direction issued by this Court on 09.03.1988, no action appears to have taken for nearly 5 years and age relaxation was granted only on 21.07.1993 by G.O.Ms.No.1121. In the said Government order, the petitioner was permitted to participate in the subsequent selection. A representation had been submitted by the petitioner to the Home Secretary, Government of Tamil Nadu, on 26.06.1993 in which the petitioner requested that he may be exempted from the age rule based on his 1984 selection and also exempt him from appearing for the written test, interview and sports events considering the fact that 9 years have elapsed after he had under gone the selection process in 1984 and stated that considering his age at that point of time at 42 years and the loyal service rendered by him to the police department for 19 years, he may be treated as a special case. There were several subsequent representations and since the request made to the Home Secretary on 25.06.1993 was pending, without prejudice to his rights, the petitioner participated in the 1994 selection, this has been specifically stated by the petitioner in his representation dated 16.03.1994 addressed to the Chairman of the Tamil Nadu Uniformed Services Recruitment Board with copy marked to Home Secretary. Therefore, it cannot be stated that the petitioner has given a goby to his earlier selection in which he was successful, except for the age criteria. 8. Unfortunately, after the 1994 selection, the petitioner's candidature was rejected as he was shorter by 1 cm in height. This rejection was held to be illegal by the Tribunal in O.A.No.1462/1994 dated 13.03.2002 and confirmed by the Hon'ble Division Bench of this Court in W.P.No.21925/02 dated 21.07.2003. It is only thereafter the respondents appointed the petitioner as Sub-Inspector of police, by order dated 08.04.2004. Therefore, in my view, the lis continued to survive till the petitioner's order of appointment was issued on 08.04.2004 as could be seen from the records placed before this Court. It is evident that the petitioner had participated in the 1994 selection without prejudice to his petition pending with the Government seeking exemption from under going the selection process in 1994, since he had already been successful in the selection process during 1983 and subsequently in 1984. After, the writ https://hcservices.ecourts.gov.in/hcservices/ petition filed by the Government in W.P.No.21925/2002 was dismissed on 21.07.2003, the petitioner's right to be considered along with the 1984 batch stood revived and the only reasonable interpretation, which could be given in the facts and circumstances of the present case is that the petitioner should be notionally given the benefit along with the 1984 batch by correctly placing the petitioner along with the 1987 open quota selected candidates. However, for the period between 1987 (the date on which the 1984 selectees by direct recruitment were appointed) and the date of his appointment as Sub- Inspector on 08.04.2004, the petitioner cannot claim any monetary benefits having not discharged duties in the higher post. 9. At this stage of the matter, it is relevant to note that one other candidate Thiru. T.Rajamuthu, who was selected by the TNPSC as Sub-Inspector in 1979 could not be sent for training along with the other selected candidates, since certain rules had to be relaxed in his favour. Subsequently, between 1979 and 1987 there was no direct recruitment to the post of Sub-Inspector of Police and therefore, the said Thiru.T.Rajamuthu could be sent for training only in the year 1987. The Director General of Police fixed the seniority of Thiru.T.Rajamuthu in the 1987 batch of direct recruit Sub-Inspectors, since he had not worked as Sub-Inspector prior to 1987. It appears that the said Thiru.T.Rajamuthu represented to the Government and the Government by G.O.Ms.No.3(D) No.35, Home Department, dated 14.05.1992, accepted the case of Thiru.T.Rajamuthu and directed his seniority to be fixed as per the rank assigned by the TNPSC in the selection conducted in 1979. In my view, the petitioner is also a similarly placed person and the analogy applicable to Thriu.T.Rajamuthu could be also applied to the case of the petitioner in view of the facts stated above. It appears that apart from Thiru.T.Rajamuthu one other person by name Thiru.P.S.Sethuraman has also been given the benefit of such retrospective, restoration of seniority. 10. Therefore, the contention of the respondents that the petitioners seniority was not assigned owing to rule 15 of the Rules is incorrect. In fact in paragraph 22 of the counter affidavit, the respondents have not denied the applicability of the Government order in G.O.Ms.No.612 dated 20.03.1989 and G.O.Ms.No.35 dated 14.05.1992 issued in favour of Thiru.P.S.Sethuraman and Thiru.T.Rajamuthu respectively, but have only stated that the said two candidates were given the benefit by the Government as a special case. 11. In my view retrospective restoration of seniority has to be based on valid and legally sustainable grounds. In the instant case as pointed by earlier the selection of the petitioner under open category as Sub-Inspector of Police during 1983/1984 is not in dispute and the petitioner having succeeded, ultimately after the writ petition filed by the Government was dismissed on 21.07.2003, is bound to be accorded the benefit of his original position based on https://hcservices.ecourts.gov.in/hcservices/ the 1984 selection, of course without monetary benefits. It is to be noted that even the Government order granting age relaxation in G.O.Ms.No.1121 has noted the fact that the petitioner is a enterprising young man, possessing the higher educational qualifications. It is further seen that the petitioner has also rendered meritorious service to the department. Further more, when this Court in the earlier writ petition in W.P.No.37209/2006, while directing the consideration of the review petition after considering the recommendations made by the Deputy Inspector General of Police dated 15.05.2005 observed that the petitioner should be included as Sub-Inspector of Police in 1984 batch and the inclusion of the petitioner in 1994 batch will not be proper. Therefore, the direction issued by this Court was not taken note by the respondents in a proper prospective. 12. For all the above reasons the petitioner is entitled to succeed and the writ petition is allowed as prayed for and the respondents are directed to refix the petitioner's seniority in the cadre of Sub-Inspector of Police by giving correct placement along with the 1987 batch of selectees to the post of Sub-Inspector of Police by direct recruitment and consequently re-determine the petitioner's seniority within a period of eight weeks from the date of receipt of this Order. It is made clear that the petitioner shall be entitled to count the period from 1987 till 08.04.2004 only for the purpose of his seniority and he shall not be entitled to any monetary benefits for the said period in the post of Sub-Inspector of Police for the said period. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To 1. The Secretary to Government, Government of Tamilnadu, Home Department Fort St. George, Chennai – 600 009. 2. The Director General of Police, Mylapore, Chennai – 600 004. + 1 c.c. to Mr. A. Amal Raj, Advocate. S.R.No.8441. + 1 c.c. to The Government Pleader. S.R.No.9421. W.P.No.30436 of 2007 AR (CO) GSK 15.02.2010. https://hcservices.ecourts.gov.in/hcservices/