IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.02.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. No.26866 of 2009,10062 & 14718 of 2010 & Connected Miscellaneous Petitions W.P. No.26866 of 2009 1.S.R.G.Thayal 2.Minor Swamy 3.N.Selvin Santhakumar 4.C.Muthelu 5.Deepak Kumar 6.R.Ranjit Kumar 7.S.Saravanan 8.K.Pugalendi 9.D.Ravikumar 10.K.Usha Rani 11.S.Balamurali 12.G.Chandru 13.K.Kottaiswamy 14.S.Arumugam .. Petitioners Versus 1.The Secretary to Government Home (Police V) Department Fort St.George, Chennai – 600 009. 2.The Director General of Police Law & Order Mylapore, Chennai – 600 004. 3.S.Annaraj Sub Inspector of Police Ooty Town Central Police Station Now Deputed as Assistant Immigration Officer Bureau of Immigration, Airport, Chennai. .. Respondents (R-3 impleaded as per order dated 29.10.2010 in M.P.No.1 of 2010 in W.P.No.26866/2009) https://hcservices.ecourts.gov.in/hcservices/ PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to fix the seniority of the petitioners who have been sent for training in the second batch on 21.05.2000 on par with the direct recruits, who have been sent for training on 16.04.1999, by clubbing 2 batches based on the marks secured by them in the Police Training College at the end of the Institutional Training and declare 'B' list for further promotion as Inspector of Police. W.P.Nos.10062 of 2010 1.G.Anandababu 2.K.Udayakumar 3.S.Thiruvengadam 4.S.Kumaresan 5.C.Devendiran 6.J.Sabastine 7.J.Balakrishnan 8.P.Rajathamaraipandian 9.L.Chitra 10.R.Vijayakumar 11.S.Sundararaj 12.P.Deepa .. Petitioners Versus 1. The Secretary to Government Home (Police V) Department Fort St.George, Chennai – 600 009. 2. The Director General of Police Law & Order Mylapore, Chennai – 600 004. .. Respondents PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to fix the seniority of the petitioners who have been sent for training in the second batch on 21.05.2000 alongwith the direct recruits, who have been sent for training in the first batch on 16.04.1999, by clubbing two batches, based on the marks secured by them in the process of recruitment and also based on the marks secured in the Police Training College at the end of the Institutional Training as per the Rules and Declare 'B' List for further promotion as Inspector of Police. W.P.No.14718 of 2010 1.V.Balan 2.P.Thiagarajan 3.H.Ramesh Kannan https://hcservices.ecourts.gov.in/hcservices/ 4.J.Ananda Rajan .. Petitioners Versus 1. The Secretary to Government Home (Police III) Department Fort St.George, Chennai – 600 009. 2. The Director General of Police Dr.Radhakrishnan Salai Mylapore, Chennai – 600 004. .. Respondents PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to fix the seniority of the petitioners who have been sent for training on 14.05.2006 on par with the direct recruits, who have been sent for training on 16.04.1999(first batch), by clubbing the batches based on the marks secured by them in the Police Training College at the end of the Institutional Training and Declare 'B' List for further promotion as Inspector of Police. For Petitioners : Mr.Venkatramani Senior Counsel for Mr.M.Muthappan For Respondents-1 & 2 : Mr.P.S.Raman Advocate General for Mrs.D.Geetha Additional Government Pleader & Mr.Vijayan Government Advocate For Respondent-3 : Mr.Su.Srinivasan C O M M O N O R D E R In view of the common issue involved, all the Writ Petitions have been taken up together and a common order is passed. 2.Facts in brief: 2.1.A Government Order was passed by the first respondent in G.O.Ms.No.1317, Home (Police.9) Department, dated 08.09.1997 deciding to fill up 1000 vacancies for the post of Sub-Inspector of Police, as existed in different ranges to the State of Tamil Nadu. The Tamil Nadu Uniformed Services Recruitment Board issued a notification dated 02.04.1998 in pursuant to the Government Order passed in G.O.Ms.No.1317, Home (Police.9) Department, dated 08.09.1997 calling for applications to fill up 1000 vacancies for the https://hcservices.ecourts.gov.in/hcservices/ post of Sub-Inspector of Police. It has been specifically mentioned in the said notification that, the selection would be made on a range wise basis at the respective ranges. 11 ranges have been earmarked for the purpose of selection. Each range has been given number of posts to be filled up separately with specific posts for men and women. 2.2.By the Government Order passed in G.O.Ms.No.1247, Home (Police.3) Department, dated 10.09.1998, the earlier orders were revised directing different types of recruitment to fill up the posts, totalling to 997 vacancies. Subsequently, selection was made as per the Government Order passed in G.O.Ms.No.1421, dated 24.09.1997 on zonal wise basis. Accordingly, a separate cut off mark was fixed for each zone. As could be seen, there were variations in the cut off marks fixed for each zone. For example, cut off marks was fixed at 78% to Chennai Zone for open competition and at 58% for the very same category to the Ramanathapuram zone. 2.3.Based upon the cut off marks fixed for each zone, the selected candidates numbering about 881 were divided into two batches. Accordingly, the first batch of candidates who have got higher marks in each zone formed the first batch and they were sent for training to the Police Training College on 16.04.1999 and the second batch was sent on 22.05.2000. The selected candidates have also been informed about the selection and the batch in which they would be sent for training. After the completion of the training, examinations were conducted for two batches separately. Accordingly for the first batch, the examination was conducted earlier, which was followed by the second batch. 2.4.The prescription of Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service is that "the seniority has to be fixed on the date on which a selectee joins duty". The selected candidates joined their posts after completion of the training, which is inclusive of six months practical training and posting in an independent station. Accordingly, they completed the probation period of 2 ½ years and joined the service. 2.5.About 53 candidates who lost their selection to the post of Sub-Inspector of Police in the year 1997-98, approached the State Administrative Tribunal by filing Original Application in O.A.No.9825 of 1998 and etc., challenging the zonal wise selection. The Tribunal held that, the zonal wise selection conducted by the respondents was not in accordance with law. A challenge was made to the orders passed by the Tribunal before the Division Bench of this Court in W.P.No.17639 of 2001 etc., batch. By a common order dated 25.02.2005, the Division Bench of this Court has passed the following orders: "73.In such circumstances, we pass the following order: https://hcservices.ecourts.gov.in/hcservices/ i)The selection of both of Sub-Inspectors of Police (Men and Women) pursuant to the selection made for the vacancies notified for the year 1997-98 by resorting to zone-wise selection was invalid inasmuch as such zone-wise selection was impermissible under Special Rules governed for Tamil Nadu Police Sub-ordinate Service. ii)Having regard to the fact that such selection and appointment came to be made as early as far back as in the year 1999, at this distant point of time, applying the ratio of the Hon'ble Supreme Court referred to in earlier paragraphs (i.e.para 61 to 64), we are not inclined to set aside the said selection. iii)Even as regards the 53 candidates with reference to whom the Directorate of Vigilance and Anti-corruption has submitted its final report holding that their selection was tainted with mal-practices, we hold that while their appointments cannot be set aside at the present juncture, their continuation in service will depend upon the final outcome of the criminal proceedings pursuant to the final report dated 18.06.2004. iv)The concerned 53 persons should be informed about our orders relating to them by a specific notice to be issued to them. v)While modifying the order of the Tribunal, we hold that from amongst the applicants who are the contesting respondents both Men and Women covered by W.P.Nos.17639 to 17660 of 2001, 17822 to 17827, 17830, 17899 to 17903 and 18349 to 18356 of 2003, such of those contesting respondents who have secured the lowest cut off marks in the category, namely, OC, BC, MBC, SC and ST after the interview, should be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those contesting respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per the prescribed regulations. vi)Such of the contesting respondents who were not called for interview, shall be called https://hcservices.ecourts.gov.in/hcservices/ for interview and after coming out successful in the interview, if their cut off marks is more than the last cut off marks in the respective category, they shall be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those contesting respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per the prescribed regulations. vii)The above said direction will also hold good in respect of the applicants who have filed O.A.Nos.10211 and 10324 of 1998, 1354, 4693 and 6796 of 1999, 955, 4212, 5668, 5669, 5671, 6659 and 8616 of 2000, 2557, 6301 and 6746 of 2001, 1920, 2189, 2286, 2424, 3073, 3633, 3745, 3751, 3999, 4194, 5001, 5142, 5518, 5546, 5687, 5688, 6412, 6429, 6458 and 6459 of 2002 and 18,19, 129, 330, 388, 389, 796, 2130 of 2003. viii)The other Original Applications, namely, O.A.Nos.2579, 2715, 3864, 3929, 3930, 4084 of 2003 and 26, 78, 207, 1625 and 1626 of 2004 as well as W.P.Nos.32253, 32255, 32499, 33155, 33136, 22344, 22015, 23063 and 34275 of 2004 are dismissed on the ground of delay and laches. ix)The petitioners-State Government are directed to take steps against the concerned Officers in accordance with the Tamil Nadu Pension Rules, based on the outcome of the criminal proceedings." 2.6.The said order was passed by the Division Bench after affording an opportunity to all the selected candidates, by ordering advertisement. Before the Division Bench, some of the petitioners herein were also heard through their counsels who made submissions in support of the zonal wise selection. Thereafter, the Division Bench found that, instead of setting aside the selection, it would be appropriate to accommodate the 49 candidates who would otherwise be eligible for the zonal wise selection. In other words, the Division Bench was pleased to hold such of those candidates, who approached the Tribunal within the time and pursued their legal remedy and who would have been selected had the State wise selection is made, alone would be selected. The judgment of the Division Bench became final https://hcservices.ecourts.gov.in/hcservices/ between the parties and as seen from a perusal of the judgment, even though it was held that, the zonal wise selection was bad in law, the selected candidates were not disturbed, but the eligible, affected candidates who approached the Court were directed to be accommodated. 2.7.The 49 candidates who have been selected in pursuant to the orders passed by the Division Bench were appointed on 18.01.2006. One of the said selected candidate is the third respondent in W.P.No.26866 of 2009. In pursuant to the representation made by the candidates, who have been selected in pursuant to the orders of this Court, an order was passed by the first respondent in G.O.Ms.No.534, Home (Police.3) Department, dated 06.07.2009, fixing their seniority with the first batch of the selected candidates. Thereafter, a representation dated 27.07.2009 was given by the petitioners stating that, their seniority should be fixed along with the candidates selected in the first batch, based upon the marks obtained in the final examination conducted in the Police Training College. Since no orders have been passed in pursuant to the representation made by the petitioners, the present Writ Petitions have been filed seeking a Writ of Mandamus, directing the respondents 1 and 2 to fix seniority of the petitioners on par with the direct recruits, who have been sent for training in the first batch on 16.04.1999, based upon the marks secured in the Police Training College at the end of the institutional training and a consequential direction has to be sought to declare the 'B' list for further promotion as Inspector of Police, based upon the seniority to be fixed on that basis. 3.Submissions of the petitioners: 3.1.Mr.K.Venkatramani, learned senior counsel appearing for the petitioners submitted that, the judgment and the ratio laid down therein rendered by the Division Bench has become final against the respondents and therefore binding on them. Once it has been declared that the zonal wise selection is bad in law, the petitioners are entitled to get the consequential benefits. The petitioners who have acquired higher marks in the examination conducted at the Police Training College, cannot be discriminated. When the bifurcation of the selected candidates into two batches is unlawful, then it cannot be the basis for fixing inter se promotion. The petitioners are in a better position than the 49 candidates, who have been selected and appointed in the year 2006 in pursuant to the orders of this Court. When benefits have been given to those candidates, the same cannot be denied to the petitioners. 3.2.The learned senior counsel further submitted that, Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service would not be a bar, since the inter seniority list has not been published so far. It is further submitted that, there is no question of delay, laches or acquiescence on the part of the petitioners, since the inter se seniority list has not been published. The learned senior counsel also submitted that, Rule 35(f) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Service Manual cannot be made applicable, as it prescribes an application for revision of the seniority, which is not the case in the Writ Petitions. In other words, the learned senior counsel contended that, in the absence of any seniority being fixed, there is no question of limitation for giving an application for the revision of the same. In support of his contentions, the learned senior counsel has made reliance upon the following judgments: "1.DALILAH SOJAH vs. STATE OF KERALA [(1998) 9 SCC 641] 2.DEVENDRA NARAYAN SINGH vs. STATE OF BIHAR [(1996) 11 SCC 342] 3.PILLA SITARAM PATRUDU vs. UNION OF INDIA [(1996) 8 SCC 637] 4.W.A.NO.211 OF 2009 DATED 21.04.2009" 3.3.Hence the learned senior counsel submitted that the Writ Petitions will have to be allowed. 4.Submissions of the respondents 1 and 2: 4.1.The learned Advocate General appearing for the respondents 1 and 2 submitted that, the Writ Petitions are liable to be dismissed for laches, delay or acquiescence on the part of the petitioners. The zonal wise selection was made as per the earlier orders and following the earlier procedure. There is no malafide on the part of the respondents 1 and 2 in adopting the zonal wise selection. The petitioners were very much aware of the zonal wise selection. The notification published in the newspapers prescribed the method of selection. The subsequent communication sent to the petitioners indicating their provisional selection, also made it very clear that, the petitioners form part of the second batch. The petitioners being fence sitters cannot wait for nearly 10 years and thereafter, file the Writ Petitions. The Government Order passed in G.O.Ms.No.534, Home (Police.3) Department, dated 06.07.2009 has not been given effect to. The said Government Order is under review, since it was felt by the respondents 1 and 2 that it would result in numerous litigations. The petitioners, being a party to the Writ Petitions before the Division Bench, cannot agitate their rights after having given up the same. The examination conducted for the two batches of candidates are distinct and different. Therefore, the marks obtained therein cannot be compared with each other. The mere fact that the petitioners have given a representation on 27.07.2009 would not entitle them to get over the laches on their part. In support of the said contention, the learned Advocate General has made reliance upon a recent judgment of the Honourable Apex Court in SHIBA SHANKAR MOHAPATRA AND OTHERS vs. STATE OF ORISSA AND OTHERS [AIR 2010 SC 706]. Therefore, the learned Advocate General submitted that the Writ Petitions will have to be dismissed. 5.Submissions of the Respondent No.3: 5.1.Mr.Su.Srinivasan, learned counsel appearing for the impleaded third respondent submitted that, the Writ Petitions are liable to be dismissed on the ground of laches. In pursuant to the https://hcservices.ecourts.gov.in/hcservices/ Government Order passed in G.O.Ms.No.534, Home (Police.3) Department, dated 06.07.2009, a letter was sent by the second respondent recommending the placement of 49 selected candidates at the bottom of the second batch. Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service clearly stipulates the date of joining as the date of seniority and therefore, there cannot be a Writ of Mandamus contrary to the rules. The petitioners have not challenged the selections made in favour of the candidates belonging to the first batch. The Writ Petitions are also not maintainable for not following Rule 35(f) of the Tamil Nadu Service Manual, inasmuch as no application was given within 3 years for the fixation of seniority. In support of his contention, the learned counsel has made reliance upon the following judgments: "1.DHANANJAY MALIK vs. STATE OF UTTARANCHAL [(2008) 4 SCC 171] 2.STATE OF ORISSA vs. PYARIMOHAN SAMANTARAY AND OTHERS [(1977) 3 SCC 396] 3.EASTERN COALFIELDS LTD. vs. DUGAL KUMAR [AIR 2008 SC 3000] 4.BASANTI PRASAD vs. THE CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD AND OTHERS [AIR 2009 SC 3162] 5.CITY INDUSTRIAL DEVELOPMENT CORPORATION vs. DOSU AARDESHIR BHIWANDIWALA AND OTHERS [AIR 2009 SC 571]" 5.2.Hence the learned counsel submitted that, the Writ Petitions will have to be dismissed as devoid of merits. 6.The factual matrix involved in these Writ Petitions are not in dispute. In pursuant to the Government Order passed, a notification was issued by the Tamil Nadu Uniformed Services Recruitment Board to fill up the vacancies in the cadre of Sub- Inspector of Police. The notification and the consequential letter of provisional selection clearly indicate the factum of zonal wise selection. All the candidates including the petitioners took part in the selection process knowing fully well that, appointment would be based upon the zonal wise selection. Original Applications have been filed by the 53 affected persons in the year 1998 in O.A.Nos.9825 of 1998 and etc., batch. The Division Bench after holding that, the process of selection was not correct and in accordance with law, did not set aside the selection already made and it merely paved way for the induction of otherwise meritorious and eligible candidates. It is also to be noted that, a cut off period has been fixed by the Division Bench by holding that persons who approached the Court subsequently cannot be extended the benefit. A specific finding has been given by the Division Bench that the status quo need not be disturbed in view of the fact that the appointment came to be made as early as in the year 1999. Therefore, the Division Bench was quiet conscious about the delay factor and the consequential appointments made therein. Keeping that in the mind, it was made clear that, the appointment made need not be disturbed. The Division Bench was also https://hcservices.ecourts.gov.in/hcservices/ pleased to dismiss the subsequent Writ Petitions on the ground of laches. 7.The petitioners were made known about the pendency of the earlier proceedings since publications were allowed to be made and some of the petitioners got themselves impleaded in pursuant to the same. They have been heard through their counsel. It is pertinent to note that the petitioners took a stand in support of respondents 1 and 2 in the earlier round of litigations, along with the candidates who got selected in the first batch. Accordingly, the petitioners took a different plea that the zonal wise selection was just and proper. Therefore, the petitioners cannot be allowed to change their stand. The petitioners cannot take advantage of an order passed in their favour, when it is convenient for them and thereafter, change the same by contending that the selection made was not correct. 8.Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service prescribes the starting point for seniority among the selected candidates. Admittedly, all the candidates who have written the examination covering both batches, joined their respective services. Therefore, the seniority would count from the date of joining. Hence, the contention of the learned senior counsel appearing for the petitioners that, the Writ Petitions are not contrary to Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service and Rule 35(f) of the Tamil Nadu Service Manual cannot be countenanced. Merely because a seniority list has not been published, it cannot be said that the petitioners can approach this Court after a period of nearly 10 years. By the operation of Rule 25 (a) of Special Rules for Tamil Nadu Police Subordinate Service, the seniority has come into play. In other words, in view of the admitted position that the candidates selected joined the duty in pursuant to the examination conducted to the first batch as a consequent thereon, the other candidates who have been selected under the second batch, automatically became their junior in the cadre of Sub-Inspector of Police. Hence, the contention of the learned senior counsel for the petitioners in this regard cannot be countenanced. 9.As submitted by the learned Advocate General, examinations have been conducted separately for the first and second batch. The question papers were admittedly different for the first batch and the second batch. Therefore, the marks obtained for the questions set differently for two different batches cannot be a factor to fix the inter se seniority by clubbing them together. The evaluation done for one batch is different from another. Therefore, the different evaluations made cannot be joined for the purpose of fixing inter se seniority among them. Hence, this Court finds that there is no justification for having a common seniority along with candidates belonging to two batches. https://hcservices.ecourts.gov.in/hcservices/ 10.The arguments of the learned senior counsel appearing for the petitioners regarding the Government Order passed in G.O.Ms.No.534, Home (Police.3) Department, dated 06.07.2009 has no factual basis. As submitted by the learned Advocate General, the said Government Order has not been given effect to. There was a subsequent recommendation made by the second respondent to the first respondent recommending a review of the same in view of the likelihood of the rights of the different parties being affected, which might ultimately reach before the Court of law. Therefore, inasmuch as the said Government Order having not given effect to, the petitioners cannot take advantage of the same. 11.Effect of non-joinder of necessary and proper parties: 11.1.The Writ Petitions are also not maintainable without impleading the parties which are likely to be affected. The petitioners seek to have a common seniority list notwithstanding the date of assumption of office and notwithstanding the different examinations conducted for two batches. In order to consider the case of the petitioners, the affected parties, namely the candidates, who have been selected under the first batch ought to have been impleaded and heard. The petitioners for the reasons known to them, have not impleaded them and therefore, this Court is of the considered view that, they being proper and necessary parties, the Writ Petitions are liable to be dismissed. 12.Delay, Laches and Acquiescence: 12.1.The petitioners have not given any reason for approaching this Court after nearly 10 years. Probably they thought to agitate their rights after the issuance of the Government Order passed in G.O.Ms.No.534, Home (Police.3) Department, dated 06.07.2009. It cannot be said that, the petitioners are not aware of their rights. In the meanwhile, rights have been accrued in favour of those candidates, who have been placed over and above the petitioners. The petitioners have also not established that by forming a common seniority list among the two batches of candidates. They would become seniors to those candidates who have been selected in the first batch. Therefore, the petitioners