Madras High Court

R.Thirunavukkarasu vs The State Of Tamil Nadu on 5 April, 2013

Bench:
R.Banumathi
,
K.Ravichandrabaabu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.04.2013

CORAM :

THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE K.RAVICHANDRABAABU

Writ Appeal Nos.849 to 854 of 2010 and 2066 of 2010
and
Writ Petition Nos.25736 to 25741 of 2010
and
W.P.Nos.17731, 20728 of 2012 and W.P.(MD)No.8911 of 2012

W.A.No.849 of 2010:
------------------

1. R.Thirunavukkarasu
2. M.Sundarajan
3.
C.P.C
hitrarasu .. Appellants

Vs.

1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department,
Secretariat, Chennai-600 009.
2. The Director General of Police,
Chennai-600 004.
3. K.Palanisamy,
Dy. Commissioner of Police,
Crime, Madurai City.
4. R.Balan,
Superintendent of Police,
Video Piracy Cell, CID, Chennai.
5. A.V.Rajaraman,
Superintendent of Police,
Special Task Force, Erode.
6. I.Balashanmugam,
Superintendent of Police,
V & AC, Southern Range, Madurai.
7. T.Elango,
Dy. Commissioner of Police,
Crime & Traffic, Salem City.
8. M.Pandiyan,
Superintendent of Police,
Thiruvannamalai, Thiruvannamalai Dt.
9. S.Rajendran,
Superintendent of Police,
Kanniyakumari, Kanniyakumari Dt.
10.S.Muthusamy,
Superintendent of Police,
Dindigul, Dindigul District.
11.R.Chinnasamy,
Superintendent of Police,
SIT, Anti Dacoity Cell,
Alandur, Chennai.
12. R.Jayanthi,
Superintendent of Police,
Crime & Traffic, Salem.
13. K.M.Mayilvahanan,
Superintendent of Police,
Salem Rural, Salem Dt.
14. S.Shanthi,
Superintendent of Police,
SIT, Video Piracy Cell,
Alandur, Chennai.
15. M.Vijayalakshmi,
Superintendent of Police,
Railways, Trichy & Madurai,
Trichy.
16. P.Moorthy,
Superintendent of Police,
Pudhukottai, Pudhukottai Dt.
17. T.Jayachandran,
Superintendent of Police,
Erode, Erode Dt.
18. M.Manohar,
Superintendent of Police, Madurai.
19. K.Thondiraj,
Addl. Superintendent of Police,
Thoothukudi.
20. R.Mohan,
Addl. Superintendent of Police,
Vice Principal, PTC, Chennai.
21. Ramamoorthy,
Addl. Superintendent of Police,
SBCID, Special Division, Chennai.
22. V.Chinnathambi,
Addl. Dy. Commissioner of Police,
CCBI, Chennai.
23. P.Ramakrishnan,
Addl. Superintendent of Police,
Crime Branch CID (SIT) Head Quarters,
Coimbatore.
24. C.Ramadoss,
Addl. Superintendent of Police,
PEW, Vellore.
25. M.Karunanidhi,
Superintendent of Police-1,
Security Branch CID,
Government Estate, Chennai.
26. S.P.Murugesan,
Addl. Superintendent of Police,
PEW, Cuddalore.
27. S.Pandiarajan,
Addl. Superintendent of Police(Crime),
Perambalur.
28. R.Velayutham,
Addl. Superintendent of Police,
PEW, Namakkal.
29. N.Rathinam,
Addl. Superintendent of Police,
PEW, Salem.
30. R.Elango,
Superintendent of Police,
Civil Supply CID, Madurai.
31. S.Senthilkumaran,
Asst. Commissioner of Police,
Triplicane Range, Chennai-2.
32. G.Tamilselvan,
Asst. Commissioner of Police/
Dy. Superintendent of Police,
T.Nagar Range, Chennai-17.
33. N.Mohanraj,
Asst. Commissioner of Police/
Dy. Superintendent of Police,
Adyar Range, Chennai-20.
34. K.Sridhar Babu,
Asst. Commissioner of Police/
Dy. Superintendent of Police,
Intelligence Section, Chennai Police,
Egmore, Chennai-8.
35. S.Elango,
Asst. Commissioner of Police/
Dy. Superintendent of Police,
Traffic Investigation, Adyar,
Chennai-20.
36. S.Thirunavukarasu,
Dy. Superintendent of Police,
Vigilance & Anticorruption,
Chennai-35.
(Respondents 31 to 36 were added as
Respondents as per order of the Court
dated 23.7.2012 in M.P.No.2 of 2012
in W.A.No.849 of 2010)

37. S.Radhakrishnan
38. V.Ashok Kumar
39. A.John Rose
40. P.Chandramohan
41. K.Arumugam
42. R.Mutharasu
43. A.Murugasamy
44. R.Sushilkumar
45. V.Gnanasekaran
46. K.Ramasamy
47. M.Madasamy
48. P.Premkumar
49. K.Gopal
50. P.K.Pethu Vijayan
51. K.Sundaravadnam
52. S.Rajkumar
53. M.Giridhar
54. K.Ramachandran
55. S.Venkatachalapathy

56. B.Sivasankaran
57. P.Ravisekaran
58. R.Vedarathinam
59. M.Karthikeyan
60. N.Mohanraj
61. S.Augustine Paul Sudhakar
62. A.Yakkoob
63. P.Stephen
64. R.Kumaresan
65. V.Vishweswarayya
66. D.Gopal
67. K.Jagadeeswaran
68. P.Arul Santhosha Muthu
69. R.Alagesan
70. N.Karunakaran
71. R.Balaji
72. S.Prabakaran
73. A.Surakumaran
74. K.Gowthaman
75. G.Pravin Kumar
76. M.Ashok Kumar
77. Krishnamoorthy
78. A.Arularasu Justin
79. G.Pugazhvardhan
80. M.Balasubramaniyan
81. K.Ramachandran
82. J.Vijay Anand
83. P.Raja
84. A.Kumaravelu
85. N.Venkatesan
86. V.Baskaran
87. S.Sankar
88. M.Vetrichezhian
89. M.Chellamuth
90. Mathew David
91. S.Muthuvel Pandi .. Respondents
(Respondents 37 to 60 impleaded as
Respondents as per the order of the
Court dated 23.7.2012 in
M.P.No.3 of 2012 in W.A.849/2010)
(Respondents 61 to 91 impleaded as party
Respondents as per the Order dated
30.7.2012 in M.P.No.4/2012 in W.A.No.849/2012)

W.A.Nos.850 to 853 of 2010:
--------------------------

R.Govindasamy .. Appellant in W.A.850 of 2010

N.Suresh Kumar .. Appellant in W.A.851 of 2010

K.Ekambaram .. Appellant in W.A.852 of 2010

T.Siva Kumar .. Appellant in W.A.853 of 2010

Vs.

1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department,
Secretariat, Chennai-9.
2. The Director General of Police,
Chennai-4.
3. The Superintendent of Police,
Perambalur District, Perambalur.
4. S.Senthilkumaran
5. G.Tamilselvan
6. N.Mohanraj
7. K.Sridhar Babu
8. S.Elango
9. S.Thirunavukarasu
(Respondents 4 to 9 impleaded as per
order of the Court dated 23.7.2012 in
M.P.No.2 of 2012)
10. S.Radhakrishnan
11. V.Ashok Kumar
12. A.John Rose
13. P.Chandramohan
14. K.Arumugam
15. R.Mutharasu
16. A.Murugasamy
17. R.Sushilkumar
18. V.Gnanasekaran
19. K.Ramasamy
20. M.Madasamy
21. P.Premkumar
22. K.Gopal
23. P.K.Pethu Vijayan
24. K.Sundaravadnam
25. S.Rajkumar
26. M.Giridhar
27. K.Ramachandran
28. S.Venkatachalapathy
29. B.Sivasankaran
30. P.Ravisekaran
31. R.Vedarathinam
32. M.Karthikeyan
33. N.Mohanraj
(Respondents 10 to 33 impleaded as
per order dated 23.7.2012 in
M.P.No.3 of 2012)

W.A.No.854 of 2010
------------------

A.Jafarali .. Appellant

Vs.

1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department,
Secretariat, Chennai-9.
2. The Director General of Police, Chennai-4.
3. The Superintendent of Police,
Perambalur District, Perambalur.
4. S.Radhakrishnan
5. V.Ashok Kumar
6. A.John Rose
7. P.Chandramohan
8. K.Arumugam
9. R.Mutharasu
10. A.Murugasamy
11. R.Sushilkumar
12. V.Gnanasekaran
13. K.Ramasamy
14. M.Madasamy
15. P.Premkumar
16. K.Gopal
17. P.K.Pethu Vijayan
18. K.Sundaravadanam
19. S.Rajkumar
20. M.Giridhar
21. K.Ramachandran
22. S.Venkatachalapathy
23. B.Sivasankaran
24. P.Ravisekaran
25. R.Vedarathinam
26. M.Karthikeyan
27. N.Mohanraj
(Respondents 4 to 27 impleaded as
per order dated 23.7.2012 in
M.P.No.3 of 2012)
28.S.Ganapathy Subramanian
29.S.Dhanasekaran
30.V.K.Murugan
31.P.Rajangam .. Respondents
(Respondents 28 to 31 impleaded as
per order dated 27.3.2013 in
M.P.No.5 of 2012)

W.A.No.2066 of 2010:
-------------------

P.Rajendran
(Rtd. Addl. Superintendent of Police),
Crime, Coimbatore District,
Coimbatore-641 028. .. Appellant

Vs.

1. The State of Tamilnadu,
rep. by its Secretary to Government,
Home Department,
Secretariat, Chennai-9.
2. The Director General of Police, Chennai-4.
3. M.Pandiyan,
Dy. Commissioner of Police, Traffic,
Traffic (Central), Chennai.
4. S.Rajendran,
Superintendent of Police, Enforcement, Madurai.
5. S.Muthusamy,
Superintendent of Police, Ariyalur.
6. R.Chinnusamy,
Superintendent of Police,
Economic Offences Wing,
Headquarters, Chennai.
7. R.Jayanthi,
Superintendent of Police,
Vigilance and Anti-Corruption,
Western Range, Coimbatore.
8. K.M.Mayilvahanan,
Civil Supplies CID, Chennai.
9. S.Shanthi,
Superintendent of Police,
CCIW CID, Chennai.
10.M.Vijayalakshmi,
Superintendent of Police,
Crime Branch CID, SIT, Coimbatore.
11.P.Moorthy,
Superintendent of Police,
Dy. Commissioner of Police,
Crime and Traffic, Trichy City.
12. T.Jayachandran,
Superintendent of Police,
Dy. Commissioner of Police,
Crime and Traffic, Tirunelveli City.
13. M.Manohar,
Dy. Commissioner (Traffic), Chennai (North).
14. K.Thondiraj,
Superintendent of Police,
CBCID, Chennai. .. Respondents

W.P.Nos.25736 of 2010:
---------------------

1.N.Rajarajan
2.K.Sasikumar
3.S.Asokan
4.R.Rayappan
5.K.Rajeswaran
6.S.Saravanan
7.P.Sasikumar
8.S.Selvasuresh Britto
9.S.Karuppu
10.T.Murugesan
11.M.Kandasamy
12.A.Logeshwaran
13.K.Logesh
14.N.Chandrakesan
15.V.P.Balasubramanian
16.M.S.Madasamy
17.P.Anburaj
18.S.Prabakaran
19.P.Sachithanandam
20.R.Manimaran
21.S.Selvaraj
22.R.Jothimani
23.K.Manickavasagam
24.S.Rajendran
25.M.Palanisamy
26.K.Ramesh
27.G.K.Chandrasekaran
28.S.Balasundaram
29.K.Gopal
30.N.Sivasamy .. Petitioners

Vs.

1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department, Chennai-9.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.No.25737 of 2010:
--------------------

1.J.Subhas
2.A.Chandran
3.S.Madeswaran
4.C.Tavamani
5.M.Muthukumar
6.P.Gopi
7.N.Kulandai Vel
8.V.Anna
9.M.Rajkumar
10.S.Gnana Prakasam
11.P.Nagaraj
12.S.Velumani
13.R,.Duraisamy
14.A.Habibullah
15.M.Nallasamy
16.N.Bakkurudin
17.B.Vetrivel. .. Petitioners

Vs.

1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department, Chennai-9.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.No.25738 of 2010:
--------------------

1.R.Senthil
2.G.Senthilkumar
3.S.Rajasekaran
4.K.Pakiyam
5.D.Kumarappan
6.A.Venkateswaran
7.M.Venkatraman
8.K.Karthick
9.R.K.Kannan
10.K.Srikanth
11.A.Allimuthu
12.C.T.Sundarapandian
13.G.Kalidhas
14.D.Devaraj
15.M.Adhiyaman
16.T.Chellasamy
17.J.Vijayakumar
18.K.Kumar
19.A.Daniel Arul Sekar
20.F.Johan Kennedy
21.S.Babu
22.K.T.David Robinson
23.A.Jayakumar
24.P.T.Victor
25.D.Dhinagaraj
26.P.Sathis .. Petitioners

Vs.

1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department, Chennai-9.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.No.25739 of 2010:
--------------------

1.A.M.Maran
2.K.Pugazhenthi
3.K.Ganesan
4.P.Muthukumaran
5.R.Bharathi Raja
6.A.Venkateswaran
7.M.Venkatraman
8.M.Muralitharan
9.M.Elangovan
10.R.Marimuthu
11.G.Ravichandran
12.G.Velusamy
13.A.Jayaraman
14.N.Tamilarasan
15.C.Ramamoorthy
16.R.Parthasarathy
17.S.Tamilselvan
18.S.Selvaraj
19.A.Albert Thomas
20.U.Palanivelu
21.J.Kalyanasundaram
22.J.Shanmugam
23.K.Suresh
24.U.Pandian
25.K.Ilayaraja
26.R.Saravanakumar
27.B.Anbu Kumaran .. Petitioners

Vs.

1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department, Chennai-9.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.No.25740 of 2010:
--------------------

1.D.Kandasamy
2.S.Ekambaram
3.L.Selvan
4.R.Moorthy
5.S.Saravanan
6.A.Masilamani
7.K.Sivakumar
8.R.Venkadesan
9.K.Balaji
10.K.Raja
11.C.Jayakrishnan
12.S.Muthukannan
13.K.Chandran
14.N.Kannan
15.S.Rajendra Prasad
16.S.Thirugnana Sundaram
17.V.Narasimman
18.M.Kannan
19.R.Mahendran
20.M.Selvam
21.M.Arulazhagan
22.V.Rasa .. Petitioners

Vs.

1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department, Chennai-9.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.No.25741 of 2010:
--------------------

1.A.P.Jayachandran
2.J.Lakshmanan
3.C.Kalaiselvan
4.B.Anburaj
5.K.Ravichandran
6.N.Chellapandian
7.A.Haridass
8.P.Balamurugan
9.M.Murugesan
10.V.Chinnadurai
11.T.R.Ravichandran
12.K.Periyasamy
13.P.Balasubramanian
14.T.Senthilkumar
15.K.Krishnakumar
16.P.Ramachandran
17.V.Bharathiraja .. Petitioners

Vs.

1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home Department, Chennai-9.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.No.17731 of 2012:
--------------------

1.S.Radhakrishnan
2.V.Ashok Kumar
3.A.John Rose
4.P.Chandramohan
5.K.Arumugam
6.R.Mutharasu
7.A.Murugasamy
8.K.Sridar Babu
9.A.D.Mohan Raj
10.R.Sushilkumar
11.V.Gnanasekaran
12.K.Ramasamy
13.M.Madasamy
14.P.Premkumar
15.K.Gopal
16.P.K.Pethu Vijayan
17.K.Sundaravadanam
18.S.Rajkumar
19.M.Giridhar
20.K.Ramachandran
21.S.Venkatachalapathy
22.B.Sivasankaran
23.P.Ravisekaran
24.R.Vedarathinam
25.S.Thirunavukarasu
26.S.Elango. .. Petitioners

Vs.

1.The State of Tamilnadu,
rep. by the Principal Secretary to Govt.,
Home Police (1A) Department,
Secretariat, Chennai-9.
2.The Director General of Police,
Kamarajar Road,
Chennai-4.
3.The Tamilnadu Public Service Commission,
rep. by the Secretary,
Anna Salai, Chennai-2.
4.Gnanasekaran,
Dy. Superintendent of Police,
Thiruchendur South Division,
Tuticorin District.
5.Gopalsamy,
Assistant Commissioner,
City Crime Branch,
Madurai City, Madurai.
6.M.Rajendran,
CBCID,
Counterfeit Currency Wing,
Coimbatore.
7.Kumaravel,
Dy. Superintendent of Police,
Crime Records Bureau,
Thiruvannamalai.
8.Perumal Sami,
Core Cell Security, Chennai.
9.Mani Rathnam,
Dy. Superintendent of Police,
Madurai District.
10.Annakodi,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
11.Shanmugarajan,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
12.Srinivasan,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
13.Mohan Singh,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
14.Balasubramanian,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
15.Veeraperumal,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
16.Loyola Ignatious,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
17.J.Rathinavel,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4.
18.A.Elango,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajr Road, Chennai-4.
19.Palanisamy,
Dy. Superintendent of Police,
O/o. The Director General of Police,
Kamarajar Road, Chennai-4. .. Respondents
(Respondents 4 to 19 given up
as per the order dated 22.3.2013)

W.P.No.20728 of 2012:
--------------------

1.K.Saravanan
2.R.Alagu Kannan
3.S.Prabakaran
4.R.Ranjith Singh .. Petitioners

Vs.

1.State of Tamil Nadu
rep. by the Prl. Secretary to Government,
Home Department, Secretariat,
Chennai-600 009.
2.The Director General of Police,
Chennai-4. .. Respondents

W.P.(MD) No.8911 of 2012:
------------------------

M.Karthikeyan .. Petitioner

Vs.

1.The State of Tamilnadu,
rep. by the Prl. Secretary to Govt.,
Home Police (1A) Department,
Secretariat, Chennai-9.
2.The Director General of Police,
Kamarajar Road, Chennai-4.
3.The Tamilnadu Public Service Commission,
rep. by the Secretary,
Anna Salai, Chennai-2.
4.Gnanasekaran,
Dy. Superintendent of Police,
Thiruchendur South Division,
Tuticorin District.
5.K.Gopalsamy,
Assistant Commissioner,
City Crime Branch,
Madurai City, Madurai.
6.M.Rajendran,
CBCID,
Counterfeit Currency Wing,
Coimbatore. .. Respondents
(Respondents 4 to 6 given up as
per the order dated 22.3.2013)

W.A.Nos.849 to 854 of 2010 are filed under Clause 15 of Letters Patent against the order made in W.P.Nos.35716, 37136 to 37140 of 2007 dated 14.10.2009 on the file of this Court.

W.A.No.2066 of 2010 is filed under Clause 15 of Letters Patent against the order made in W.P.No.2939 of 2008 dated 14.10.2009 on the file of this Court.

W.P.Nos.25736 to 25741 of 2010 are filed under
Article 226
of Constitution of India praying to issue Writ of Certiorarified Mandamus to call for the records pertaining to the impugned G.O.Ms.No.1396 dated 03.10.2007 passed by the first respondent and quash the same and consequently, direct the respondents 1 and 2 to promote the petitioners to the next avenue of promotion fixed in pursuance of G.O.Ms.No.1252 dated 29.10.2004 issued by the first respondent.

W.P.No.17731 of 2012 is filed under
Article 226
of Constitution of India praying to call for the records on the file of 1st respondent in connection with the order passed by him in G.O.Ms.No.332, Home (Pol.1A) Department, dated 03.5.2012 and quash the same by issuing a Writ of Certiorari.

W.P.(MD) No.8911 of 2012 is filed under
Article 226
of Constitution of India praying to call for the records on the file of 1st respondent in connection with the order passed by him in G.O.Ms.No.332, Home (Pol.1A) Department, dated 03.5.2012 and quash the same by issuing a Writ of Certiorari.

------------------------------------------------------------------
For Appellants in : Mr.N.Vijay Narayan
W.A.No.849/2010 Senior Counsel
for
M/s.Row & Reddy
------------------------------------------------------------------
For Appellants in : Mr.N.G.R.Prasad
W.A.Nos.850 & for
851 of 2010 M/s.Row & Reddy
------------------------------------------------------------------
For Appellants in : Mr.A.Prabhakara Reddy
W.A.Nos.852 to for
854 of 2010 M/s.APR Associates
------------------------------------------------------------------
For Appellant in : Mr.N.Manoharan
W.A.No.2066/2010
------------------------------------------------------------------
For Petitioners in : Mr.R.Singaravelan
W.P.No.17731/2012
and
Respondents 37 to 60
in W.A.No.849/2010;
Respondents 10 to 33
in W.A.Nos.850 to
853 of 2010 and
Respondents 4 to 27 in
W.A.No.854 of 2010
------------------------------------------------------------------
For Petitioner in : Mr.R.Singaravelan
W.P.(MD)No.8911/2012 for
Mr.D.Selvanayagam
------------------------------------------------------------------
For Petitioner in : Mr.M.Radhakrishnan
W.P.No.20728/2012
------------------------------------------------------------------
For Petitioners in : Mr.V.G.Guhan Murugan
W.P.Nos.25736 to
25741 of 2010
------------------------------------------------------------------
For Respondents : Mr.AL.Somayaji
1 & 2 in W.A.No.849 of Advocate General
2010 & W.P.No. assisted by
17731 of 2012 and Mr.I.S.Inbadurai, Spl. G.P.
Respondents 1 to 3 in Ms.A.SriJayanthi, Spl. G.P.
W.A.Nos.850 to 854 of
2010 and W.P.No.
20728 of 2012 and
WP(MD)No.8911/2012
------------------------------------------------------------------
For Respondents 1 and : Mr.P.H.Arvindh Pandian
2 in W.A.No.2066/2010 Addl. Advocate General
and W.P.No.25736 to assisted by
25741 of 2010 Mr.I.S.Inbadurai, Spl. G.P.
Ms.A.SriJayanthi, Spl. G.P.
------------------------------------------------------------------
For Respondents 31 to : Mr.R.Muthukumarasamy
36 in W.A.849/2010 Senior Counsel
for
M/s.A.Jenasenan
------------------------------------------------------------------
For Respondents 61 to : Mr.G.Sankaran
91 in W.A.849/2010
------------------------------------------------------------------
For Respondents 28 to : Mr.B.Saravanan
31 in W.A.854/2010
------------------------------------------------------------------
Respondents 4 to : Given up
19 in W.P.17731/12
------------------------------------------------------------------
Respondents 4 to 6 in : Given up
WP(MD)8911 of 2012
------------------------------------------------------------------
Respondents 5,7,9 to : No Appearance
12 in WA.2066/2010
------------------------------------------------------------------

COMMON JUDGMENT

R.BANUMATHI,J & K.RAVICHANDRABAABU,J.

W.A.Nos.849 to 854 of 2010 & 2066 of 2010  Whether the Appellants, who were part of Special Task Force and were given "one stage accelerated promotion" by executive orders, can claim consequential seniority in the accelerated promotional post over their senior lower category; whether the learned single Judge was right in holding that G.O.Ms.1396 Home (Pol.1A) Department dated 03.10.2007 sets right the ambiguity regarding seniority position in accordance with General Rule 35 of Tamil Nadu State and Subordinate Service Rules and whether the Order of the learned single Judge warrants any interference, are the points falling for consideration in these intra-Court appeals. Validity of G.O.Ms.1396 Home Department dated 03.10.2007 is the core issue.

2. Before the learned single Judge the Government supported G.O.Ms.No.1396 Home dated 03.10.2007 and thereby supported the Respondents by taking a stand that accelerated promotees could never be given consequential seniority and that Executive Orders cannot over ride the statutory rules. Against the dismissal of Writ Petitions, Writ Appeals in W.A.Nos.849 to 854 of 2010 and 2066 of 2010 were filed by certain police personnel. Writ Petitions in W.P.Nos.25736 to 25741 of 2010, which were omitted to be tagged along with batch of Writ Petitions challenging G.O.Ms.No.1396 Home dated 03.10.2007, were also taken up. State Government has not preferred any appeal. In these appeals, State Government made volte-face by assailing G.O.Ms.No.1396 Home dated 03.10.2007.

3. In the writ appeals, earlier, the Division Bench in their order dated 12.04.2012, granted "interim stay of operation of the common order dated 14.10.2009 passed by the single Judge". By the order dated 02.8.2012, the Division Bench modified the earlier interim order dated 12.4.2012 into "status quo". Referring to the interim stay granted by the Division Bench and the opinion of the then learned Advocate General, Government issued G.O.Ms.No.332 Home (Pol.1A) Department dated 03.05.2012 cancelling Paragraph (3) of G.O.Ms.1396 Home dated 03.10.2007 and restoring the original position occurring at Paragraph 5(e) of G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346 Home dated 06.12.2004. Challenging G.O.Ms.No.332 Home dated 03.05.2012, Writ Petitions (W.P.Nos.17731 & 20728 of 2012 and W.P.(MD) No.8911 of 2012) were filed by some of the police personnel. Since the issues involved in the Writ Appeals and the Writ Petitions are one and the same, both were heard together and shall stand disposed of by this common Judgment.

4. Brief facts which led to passing of G.O.Ms.No.1396 Home dated 03.10.2007:-

In recognition of killing of notorious forest brigand Veerappan and his gang, in G.O.Ms.No.1252 Home dated 29.10.2004, the State Government have accorded accelerated promotion to 748 police personnel by creating supernumerary posts to accommodate the persons, who were given accelerated promotions. In the said G.O., while granting one stage accelerated promotion, the Government ordered creation of 748 supernumerary posts in order to accommodate those who are accorded accelerated promotion by specifically indicating that those 748 supernumerary posts sanctioned were person oriented and shall lapse whenever the incumbents vacate the posts on retirement from service or otherwise.

5. In G.O.Ms.No.1237 Home dated 27.10.2004, orders were issued by the Government to the police personnel engaged in Special Task Force operation and granted Rs.22.71 crores towards payment of cash award of Rs.3,00,000/- each to 757 Police officers/ Policemen, who are eligible for the award under the "Award Scheme" for bravery, heroic action and gallantry. Though the said G.O. was passed sanctioning Rs.22.71 crores towards the payment of cash award of Rs.3,00,000/- each to those persons whose names are listed in the annexure, a perusal of the annexure would further show that apart from the payment of Rs.3,00,000/- in cash, they were also given house site in kind, to which there is no cross-reference or order made by the Government, in the said G.O.Ms.No.1237 Home dated 27.10.2004. No other Government Order with regard to grant of house sites is placed before us.

6. In G.O.Ms.No.1346 Home dated 06.12.2004, Government also granted accelerated promotion to 159 Special Task Force police personnel and granted cash award of Rs.2,00,000/- to each including the Appellants herein, who served in the Special Task Force. In G.O.Ms.No.1357 Home dated 6.12.2004, three police personnel, who were accorded one stage accelerated promotion under G.O.Ms.No.1252 Home dated 29.10.2004, were granted one stage further promotion (out of turn) to the rank of Deputy Superintendent of Police, Sub-Inspector of Police, Head Constable respectively.

7. In G.O.Ms.No.798 Home dated 5.6.2007, the Government accorded sanction for creation of 131 supernumerary posts in order to accommodate those who were accorded accelerated promotion. In the said G.O., the Government by exercising its power conferred under Rule 5-A of Fundamental Rules, relaxed the definition (30-B) under Fundamental Rule 9 in respect of the 131 supernumerary posts as onetime measure, subject to certain conditions.

8. G.O.Ms.No.1396 Home dated 03.10.2007 came to be passed in pursuant to the objections raised by several persons among the Additional Superintendents of Police, who are seniors to the accelerated promotees in their lower cadre as against placing those accelerated promotees at the bottom of the seniority list in the promotional posts and consequential seniority to the accelerated promotees. Government was of the view that giving consequential seniority to accelerated promotees would lead to a situation of reduction in rank of their seniors in the lower category for no fault of them, deleting the then existing Para 5(e) in G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No. 1346 Home dated 6.12.2004 Government issued G.O.Ms.No.1396, Home, dated 3.10.2007. Consequently para 5(e) was substituted as follows:-

"The seniority between the accelerated promotees and the general promotees in the promoted category shall continue to be governed by their panel position i.e. with reference to their interse seniority in the lower grade. At any stage the accelerated promotion will not give the individual accelerated consequential seniority, since the accelerated promotion is only for one stage."

9. Challenging the said G.O.Ms.No.1396 Home dated 03.10.2007, number of Writ Petitions were filed. Case of Appellants/Writ Petitioners is that one stage accelerated promotion has been given to the Appellants as per General Rule 36(b)(ii)(2) of Tamil Nadu State and Subordinate Service Rules and the said Rule provides for giving special promotion for conspicuous merit and ability to the members of service. Rule 35(a) and 35(aa) will not apply to the present case, as it applies to the promotion made on regular basis. The interpretation given by the impugned G.O.Ms.No.1396 Home dated 03.10.2007 is wrong and the Government cannot nullify one stage accelerated promotion given to the Appellants for their conspicuous merit and ability and Appellants prayed for quashing of G.O.Ms.No.1396 Home dated 03.10.2007.

10. Averments in the Counter:- Resisting the Writ Petitions, Government filed counter-affidavit supporting G.O.Ms.No.1396 Home dated 03.10.2007. In the counter-affidavit filed by the Government, it was averred that the main intention of the Government for creating supernumerary posts at huge cost is to avoid stagnation in further promotion of seniors in the lower cadre of the accelerated promotees. By G.O.Ms.No.1396 Home dated 03.10.2007 the further promotion and interest of the personnel, who were seniors to the accelerated promotees in the lower cadre, are protected. The qualifications prescribed in the Service Rules have to be relaxed infavour of the personnel, who were involved in the Special Task Force operation including the Appellants as one time measure so as to accommodate them in the accelerated promotion list. The police personnel, who were regularly empanelled and seniors to the accelerated promotees in their lower cadre have protested by saying that the accelerated promotees should not get any higher seniority in view of such accelerated promotion. This was considered by the Government and the anomaly was set right by passing G.O.Ms.No.1396 Home dated 03.10.2007. It was averred that there is no special rule for giving consequential seniority to accelerated promotees among police personnel in the Special Rules for Tamil Nadu Police Subordinate Service or in other statutory rules. The seniority of service is fixed as per Rule 35 of General Rules in TNS & SS Rules. As per the said Rule, the seniority of a person shall, unless he is reduced to lower rank as punishment should be determined either by rank obtained by him in the list of approved candidates drawn by the Tamil Nadu Public Service Commission or State appointing authorities as the case may be or the date of appointment. It was further averred that giving consequential seniority to accelerated promotees may lead to a situation of reduction in rank of their seniors in the lower category, for no fault of them. The executive orders will not prevail over statutory rules. There is no provision for giving accelerated consequential seniority in higher stages also and the counter-affidavit sought for dismissal of the Writ Petitions.

11. Findings of Writ Court  Upon consideration of the rival contentions, learned single Judge dismissed the Writ Petitions holding that:-

Appellants were not promoted to the substantive posts which were available when Government Order was passed, but supernumerary posts were created for them to accommodate accelerated promotees.

The post in question, being a selection post, requires consideration of eligible and qualified persons. Accelerated promotions were granted to chosen individuals.

Accelerated Promotion Board Minutes dated 25.10.2004 does not reveal consideration of each and every individual's acts of bravery.

While according accelerated promotion to police personnel of S.T.F. team, Guidelines issued in G.O.Ms.No.468 dated 19.03.1996 have not been followed.

Government was well within its power in deleting Para 5(e) in G.O.Ms.No.1252 Home dated 29.10.2004 and the impugned G.O.Ms.No.1396 Home dated 03.10.2007 enforces first proviso to Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules and G.O.Ms.No.1396 clarifies the panel position.

12. Contentions  Challenging the findings of the learned single Judge, Mr.Vijay Narayan, learned Senior Counsel for Appellants in W.A.No.849 of 2010 submitted that Appellants were desirous of taking risk in the life and did service to the society by undertaking risky assignment as against the other persons who wanted to continue with their usual police duty and one stage accelerated promotion has been given to the Appellants by virtue of General Rule 36(b)(ii)(2) of TNS & SS Rules, which provides for special promotion for conspicuous merit and ability to the members of that service. Learned Senior Counsel submitted that Rule 36(b)(ii)(2) is an exception to proviso to Rule 35(aa), which deals with seniority of a person in service as per which seniority shall be determined with reference to date on which he is appointed to the services. Learned Senior Counsel further submitted that senior persons in the lower category cannot claim seniority by virtue of Rule 35(aa) and since the Appellants were given accelerated promotion for their conspicuous merit and ability, Rule 35(aa) will not come into play and proviso to Rule 35(aa) will not apply and while so, the learned single Judge was not right in upholding the impugned G.O.Ms.No.1396 Home dated 03.10.2007 by saying that it enforces the first proviso to Rule 35(aa) of TNS & SS Rules. Learned Senior Counsel further submitted that accelerated promotion was regular promotion and there is nothing to indicate that they are temporary or adhoc promotion.

13. Mr.N.G.R.Prasad, learned counsel for Appellants in W.P.Nos.850 and 851 of 2010 submitted that where a person is given special promotion for conspicuous merit and ability under Rule 36(b)(ii)(2), the special promotion is not governed by Rule 35. Learned counsel contended that special promotion is given under
Section 36(b)(ii)(2)
which itself states that Rule of seniority need not be followed and therefore, G.O.Ms.No.1396 Home dated 03.10.2007 is directly opposed to Rule 36(b)(ii)(2). Learned counsel further submitted that only after the change of Government in the year 2006, G.O.Ms.No.1396 Home dated 03.10.2007 came to be passed and the impugned G.O.Ms.No.1396 Home dated 03.10.2007 is politically motivated and unsustainable.

14. Mr.A.Prabhakara Reddy, learned counsel for Appellants in W.A.Nos.852 to 854 of 2010 submitted that Rule 35 and Rule 36(b)(ii)(2) are totally different and accelerated promotion was given in terms of Rule 36(b)(ii)(2) for merit and ability of the Appellants and other police personnel, who served in the Special Task Force and Rule 36(b)(ii)(2) is an exception of Rule 35(a) and the accelerated promotees are entitled to consequential seniority.

15. Mr.V.G.Guhan Murugan, learned counsel for Writ Petitioners in W.P.Nos.25736 to 25741 of 2010 reiterated the submissions of the learned counsel for Appellants in W.A.Nos.852 to 854 of 2010.

16. Mr.N.Manoharan, learned counsel for Appellant in W.A.No.2066 of 2010 submitted that accelerated promotion was given to the Appellant for the outstanding meritorious service in operation cocoon and therefore, seniority is consequential one and there is no legal embargo to give consequential seniority to the accelerated promotees who got their promotion for their achievement in Special Task Force operation. Learned counsel further submitted that Paragraph 5(e) of G.O.Ms.No.1252 Home dated 29.10.2004 is very clear about fixation of seniority of the accelerated promotees and there is no ambiguity in G.O.Ms.No.1252 Home dated 29.10.2004 with regard to continuity of seniority and while so, issuance of G.O.Ms.No.1396 Home dated 03.10.2007 is arbitrary and cannot be sustained.

17. Mr.R.Muthukumarasamy, learned Senior Counsel for Respondents 31 to 36 in W.A.No.849 of 2010 submitted that Respondents 31 to 36 are regularly recruited Sub-Inspectors of Police and now became Inspectors and are seniors to the Appellants in the category of Inspectors. It was submitted that though the Respondents 31 to 36 are seniors, they continued to be the Inspectors of Police, whereas the Appellants became Deputy Superintendents of Police. Learned Senior Counsel contended that so far as police force is concerned, right from the post of Sub Inspector of Police, the post is a selection post and promotions were made on the basis of merit-cum-seniority. Learned Senior Counsel submitted that as per G.O.Ms.No.468, Home, dated 19.3.1996, individual assessment relating to the work that has been done by the individual warranting accelerated promotion has to be assessed by the Committee constituted for that purpose and in the present case there was no such appraisal of individual's merit and ability. Learned Senior Counsel contended that persons not being appointed according to the Rules were not entitled to claim inter se seniority with those persons, who were regularly promoted. Drawing our attention to Rule 36(b)(ii)(2) of TNS & SS Rules, learned Senior Counsel contended that Rule 36(b)(ii)(2) will apply only in case of promotion for conspicuous merit and ability and accelerated promotion given to the Appellants is not in accordance with the rules and it is outside the rules.

18. Mr.D.Sankaran, learned counsel for Respondents 61 to 91 in W.A.No.849 of 2010 submitted that already a pyramid comprising 131 supernumerary posts have been created to accommodate the officers who were given accelerated promotion for their work in S.T.F. and this pyramid cannot further be expanded by giving them consequential seniority in the higher position. Taking us through G.O.Ms.No.798 dated 05.6.2007, learned counsel submitted that G.O.Ms.No.798 dated 05.6.2007 has already been implemented and the juniors to Respondents 61 to 91 in W.A.No.849 of 2010, who were originally promoted in supernumerary posts, have been absorbed into regular vacancies only subsequently and the seniority of the Respondents 61 to 91 in W.A.No.849 of 2010 cannot be over reached by the accelerated promotees.

19. In the Writ Court, Government took a stand supporting G.O.Ms.No.1396 Home dated 03.10.2007. As against the dismissal of Writ Petitions, Government have not preferred any appeal. In the appeals, in its volte-face stand, Government now supports the Appellants by assailing G.O.Ms.No.1396 Home dated 03.10.2007. In total contradiction to the stand taken in the counter, the learned Advocate General submitted that the persons who took part in Special Task Force operation stand apart from the other persons and one stage accelerated promotion granted carries with its seniority also and the seniority is consequential to the accelerated promotion.

20. Learned Advocate General submitted that Rule 36(b)(ii)(2) permits promotion on the ground of merit and ability and it was group action based on which benefit of accelerated promotions were given and therefore no individual appraisal of merit and ability was required. The learned Advocate General further submitted that for applying Rule 35(aa) for fixing the seniority the condition precedent is that the seniors should have been promoted in the same method of appointment and Rule 35(aa) will not apply to the present case as it applies only to the promotion made on regular basis. Learned Advocate General further submitted that by grant of accelerated promotion, the accelerated promotees are placed at the bottom level in the promotional position and they are entitled to get status in the promotional position as well as seniority.

21. Challenging G.O.Ms.No.332 Home dated 03.05.2012, Mr.Radhakrishnan, learned counsel for Petitioner in W.P.No.20728 of 2012 submitted that State of Tamil Nadu, having taken stand before the Writ Court that accelerated promotees would never be given consequential seniority, now cannot turn round and issue G.O.Ms.No.332 Home dated 03.05.2012 giving consequential seniority to the accelerated promotees. Learned counsel submitted that accelerated promotees are only occupying the supernumerary posts and not in the capacity of regular promotees and their claim and consequential seniority in the higher position over regular promotees would be contrary to Rule 25 of Special Rules for Tamil Nadu Police Subordinate Service. Insofar as the Inspectors are concerned, Rule 25 of the Special Rules for Tamil Nadu Police Subordinate Service dealing with the seniority is applicable. Therefore, the original seniority alone is carried over till the person reaches the final stage i.e. till he is appointed to the post of Superintendent of Police. Rule 36(b)(i) of the Tamil Nadu State Subordinate Service Rules deals with promotion to selection category or grade, whereas Rule 36 (b)(ii) deals with promotion according to seniority. All other promotions referred to under Rule 36(b)(ii) would mean non-selection promotion. According to respondents, what is given to the Appellants is not a promotion under Rule 36 (b)(ii)(2) as a special promotion but it is only an award. Learned counsel further submitted that in the event of the principle of consequential seniority being allowed to accelerated promotees, it would cause irreparable damage to other Inspectors of Police and that they would lose their further promotional chances. Learned counsel contended that what is given to the Appellants is not a promotion under Rule 36(b)(ii)(2) as a special promotion, but is only an award. The learned counsel would further contend that there is no rule, which defines accelerated promotion and supernumerary posts are not born on the cadre. Therefore the accelerated promotees were not appointed to the post born on the cadre as defined under Rule 2(1).

22. Mr.R.Singaravelan, learned counsel for Petitioners in W.P.No.17731 of 2012 and W.P.(MD) No.8911 of 2012 submitted that accelerated promotion is not with reference to any rules and the accelerated promotees were only ex-cadre post and any length of service in ex-cadre post cannot be counted for the purpose of fixation of seniority and it was only "fortuitous service". Leaned counsel further submitted that Paragraph 5(e) of G.O.Ms.No.1252 Home dated 29.10.2004 stipulates that "names of individual, who are granted accelerated promotion, be placed at the bottom of the seniority list of the respective category" and it was only a fortuitous service and that bottom position was given to accelerated promotees in Paragraph 5(e) has not dealt with the inter se seniority. Learned counsel submitted that accelerated promotees were accommodated in supernumerary posts and they did not form integral part of cadre strength in the higher position and while so, they cannot claim consequential seniority in the higher position.

23. Learned counsel Mr.R.Singaravelan further contended that various rules were required to be amended and if rules were not amended, then Government Order granting accelerated promotion has no legs to stand. Learned counsel further contended that even if G.O. Ms.No.798 dated 5.6.2007 is to be treated as a Government Order relaxing the rules, such executive order cannot relax the statutory rules.
In this respect, he relied on the judgments reported in Suraj Parkash Gupta and Others Vs. State of J&K and Others ((2000) 7 SCC 561);
State of Orissa and Another Vs. Mamata Mohanty
((2011) 3 SCC 436);
Dr. Rashmi Srivastava Vs. Vikram University and Others
((1995) 3 SCC 653);
S.I. Paras Kumar and Others Vs. S.I.Ram Charan and Others
(2004) 6 SCC 88).

24. We have carefully considered the contentions and also the order of the learned single Judge. Upon consideration of rival contentions, the following points arise for consideration:-

1. Whether non-challenge of G.O.Ms.No.1252, Home dated 29.10.2004 and other Government Orders will disentitle the regular promotees to question the consequential seniority claimed by the Appellants?

2. Whether the Respondents are right in contending that the accelerated promotion given to the Appellants/Police personnel in Special Task Force Team was without reference to any statutory rules and that executive orders cannot override the statutory rules?

3. Whether the Appellants and other police personnel, who were awarded one stage accelerated promotion in the newly created supernumerary posts, can claim consequential seniority in the higher category?

4. Whether contesting Respondents are right in contending that the promotional post being a selection post, question of fixing seniority for accelerated promotions in the promotional position has to be strictly in accordance with Tamil Nadu State and Subordinate Service Rules?

5. Whether the award of accelerated promotion given to the accelerated promotees was promotion given to them based on merit and ability within the ambit of Rule 36(b)(ii)(2)?

6. Whether the Government was right in considering the representations given by the Police Officers, who are seniors to the persons who have been accorded accelerated promotion and passing impugned G.O.Ms.No.1396 Home dated 3.10.2007?

7. Whether G.O.Ms.No.1396 Home dated 03.10.2007 deleting Para No.5(e) clarifies ambiguity over panel position of the accelerated promotees vis-a-vis their seniors in the lower category as per Tamil Nadu State and Subordinate Service Rules?

8. Whether the Government is justified in taking a different stand in the writ appeals and issuing G.O.Ms.No.332 Home dated 03.05.2012?

25. Veerappan along with his three gang members were shot dead on 18.10.2004. In the Press Meeting held on 19.10.2004, the Hon'ble Chief Minister of Tamil Nadu announced among others that "one stage accelerated promotion" will be given to all 752 Special Task Force personnel involved in the operation. The Director General of Police by his communication dated 22.10.2004 and 25.10.2004 has sent proposal for granting accelerated promotion to them. As seen from G.O.Ms.No.1252, dated 29.10.2004, the proposal seems to have been placed before the Accelerated Promotion Board in its meeting held on 25.10.2004. Thereafter, the Government, after examining the proposal of the Director General of Police and the recommendation of the Accelerated Promotion Board, has accorded "one stage accelerated promotion" for Special Task Force personnel. Within ten days of such announcement, G.O.Ms.No.1252 Home dated 29.10.2004 came to be issued granting promotion to the members of Special Task Force including "one stage accelerated promotion".

26. Before we examine the rival contentions of learned counsels, for appreciation of facts, it is necessary to refer to G.O.Ms.No.1252 Home dated 29.10.2004 and highlight its features viz., accelerated promotion and creation of supernumerary posts. G.O.Ms.No.1252 Home dated 29.10.2004 reads as under:-

ABSTRACT

--------

Police  Special Task Force  Encounter and killing of notorious forest brigand
Veerappan and his gang  Award of Accelerated Promotion  Orders Issued.

----------------------------------------------------------------------Home
(Pol.VIII) Department
G.O.Ms.No.1252 Dated 29.10.2004
Read:

1.G.O.Ms.No.468 Home (Pol.V) Department dated 19.3.1996.

2.From the Director General of Police, Chennai Letter Rc.No.22047/NGB vii (2)/2004, dated 22.10.2004 and 25.10.2004

3.G.O.Ms.No.1247 Home (Pol.V) Department dated 28.10.2004.

ORDER:

------

..........

2. In recognition of their courage and heroic achievement the Honourable Chief Minister in the Press Meet held on 19.10.2004 has announced among others that "One Stage accelerated promotion" will be given to all the 752 Special Task Force personnel involved in the operation. ......

5. ........

(a)Accelerated promotion of one stage from the present rank is accorded as detailed below

(i)Tvl. G.Sampathkumar and S.V.Karuppasamy, now Addl. Superintendent of Police (Category I) to the rank of Superintendent of Police (Non IPS).

(ii)Tvl. Thirunavukkarasu, M.Sundararajan,
C.P.C
hitrarasu, Deputy Superintendent of Police (Category I) to the rank of Additional Superintendent of Police (Category I) and F.M.Hussain, Deputy Superintendent of Police (Category II) to the rank of Additional Superintendent of Police (Category II).

(iii)12 Inspectors of Police to the rank of Dy. Superintendents of Police.

(iv)76 Sub-Inspectors of Police/Sub-Inspectors of Police (Technical) to the rank of Inspectors of Police/Inspectors of Police (Technical).

(v)56 Head Constables/Havildars/Special Sub-Inspector of Police to the rank of Sub-Inspectors of Police.

(vi)59 Grade I Police Constables to the rank of Head Constables/Havildars.

(vii)519 Grade II Police Constables to the rank of Grade I Police Constables.

(viii)1 photographer to the rank of Senior Photographer.

(ix)19 Followers (10-Cooks, 3-Sweepers, 2-Dhobies, 3-Followers, 1-Barber) to the rank of Record Clerk.

(b) .......

(c) 748 (Seven hundred and forty eight) Supernumerary posts be created in order to accommodate those who are accorded accelerated promotion. These posts now sanctioned are person oriented and they shall lapse whenever the incumbents vacate the post on retirement from service or otherwise.

(d) Relaxation of restrictions/conditions prescribed for promotion in the rules/Government order conditions for accelerated promotion and amendment to the relevant rules wherever necessary will be issued as a one time measure, separately. The Director General of Police is requested to send suitable proposals in this regard.

(e) The names of the individual who are granted accelerated promotion be placed at the bottom of the seniority list of the respective category existing on the date of their joining duty in the new post.

(f) The Inspectors of Police who are granted accelerated promotion to the rank of Deputy Superintendents of Police are appointed temporarily and their service would be regularized after obtaining the concurrence of Tamil Nadu Public Service Commission separately.

6. The details of names of personnel, their present rank and the rank to which they are promoted/appointed are as shown in the Annexure to this order.

......

Secretary to Government

27. The Government in its own appreciation of the operation killing forest brigand Veerappan and his three gang members thought fit to grant accelerated promotion enmasse to all the 748 police personnel involved in the Special Task Force. G.O.Ms.No.468 Home dated 19.3.1996 contemplates the procedure to be followed in cases of granting accelerated promotion for the outstanding performances either in the field of sports or other professional achievements. In the Government Letter No.133841/Pol.III 96-1 Home Department dated 27.1.1997 addressed to the Director General of Police, it was stated that accelerated promotion cannot be treated as a routine affair and the proposals have to be placed before the Board with full details and justification. In the said letter, it was further stated that accelerated promotion should be based on one's role in the action and nature of the risk taken by the individual during the adventure/event. As pointed out earlier, within ten days of announcement by the Hon'ble Chief Minister, G.O.Ms.No.1252, Home dated 29.10.2004 came to be issued. As indicated by the Government in its letter dated 27.1.1997, the role played by each individual in the action and nature of the risk taken by the individual could not have been assessed within such a short span of time. As pointed out by the learned single Judge, that G.O.Ms.No.1252 Home dated 29.10.2004 came to be issued within ten days of Hon'ble Chief Minister's announcement would show that no individual appraisal of the case of bravery would have been possible within such short span of time. Accelerated promotion was not based on the individual's role in the action and the nature of risk taken by the individual. Likewise, number of seniors to be overlooked if accelerated promotion is given to the team, also do not seem to have been considered. Accelerated promotion was given by creation of supernumerary posts. We are of the view, accelerated promotion so granted was in deviation from the directions issued by the Government in letter dated 27.1.1997.

28. Points No.1 and 2:-

Re.contention: Non-challenge to the earlier G.O.Ms.No.1252 Home dated 29.10.2004:- Case of contesting Respondents/regular promotees is that accelerated promotion given:-

(i)was not with reference to any statutory rules.

(ii)Accelerated promotees were only accommodated by creation of supernumerary posts and they shall lapse whenever the incumbent vacates the post on retirement from service or otherwise. Accelerated promotees were not occupying the supernumerary posts in the capacity as regular promotees and that they have not become the "member of service" within the meaning of Rule 2(10) of Tamil Nadu State and Subordinate Service Rules.

29. Per contra, case of Appellants is that accelerated promotion given to the Appellants and other police personnel was never challenged and G.O.Ms.No.1252 Home dated 29.10.2004 and other Government Orders granting one stage accelerated promotion was not at all challenged and while so, the contesting Respondents cannot advance arguments on the correctness or otherwise of the accelerated promotion.

30. Before the learned single Judge, the State Government supported G.O.Ms.No.1396, Home dated 19.3.1996 and in the Writ Court, learned Advocate General submitted that there are no rules available in the TN S & SS Rules or in the Special Rules for Tamil Nadu Police Subordinate Service providing procedure for one stage accelerated promotion. Before the single Judge, the learned Advocate General also submitted that there was no appraisal of the acts of bravery of each individual member of the Special Task Force. Now, because of change of Government, there is paradigm shift in the stand of the Government. Now in the writ appeals, the learned Advocate General submitted that regular promotees, having not challenged G.O.Ms.No.1252, Home dated 29.10.2004, cannot assail the accelerated promotion given to the Appellants and other police personnel.

31. Mr.N.G.R.Prasad, learned counsel submitted that G.O.Ms.No.1252 Home dated 29.10.2004 was not challenged at the early point of time and if aggrieved by the accelerated promotion, Respondents should have approached the Court then and there. Learned counsel further submitted that after the change of Government, at the instance of persons, who were against the accelerated promotion and seniority, the Government succumbed to their request and G.O.Ms.No.1396 Home dated 03.10.2007 came to be passed.
In support of his contention, the learned counsel
placed reliance upon
(
1975) 1 SCC 152 [P.S.Sadasivaswamy v. State of Tamil Nadu
] where the Hon'ble Supreme Court held as under:-

"2. ....... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under
Article 226
nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under
Article 226
in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. ...."

32. It is vehemently argued by the learned counsel appearing for the appellants as well as by the learned Advocate General appearing for the Government that persons, who have not challenged the grant of accelerated promotion in the year 2004 and allowed the same to become final, cannot be permitted to question the fixation of seniority of those accelerated promotees. In effect, their contention is that when original promotion is not challenged, consequential fixation of seniority cannot be questioned. According to the accelerated promotees, the fixation of seniority is automatic and is a vested right conferred on them in pursuance to the grant of accelerated promotion.

33. Since it was vehemently argued by the learned counsel for Appellants as well as by the learned Advocate General regarding non-challenge to G.O.Ms.No.1252, Home, dated 29.10.2004, it is necessary to consider whether non-challenge to said G.O.Ms.No.1252, Home, dated 29.10.2004 would preclude the contesting Respondents from putting forth their case that accelerated promotion was given without reference and that the accelerated promotees cannot claim consequential seniority in the higher position.

34. It is true that the accelerated promotions given in the year 2004 in G.O.Ms.No.1252 Home dated 29.10.2004 were not questioned by any one much less the contesting Respondents in these appeals. The accelerated promotees got such benefit in pursuance to the Government's decision to grant the same in appreciation of exemplary and bravery service rendered by those persons who joined the STF. Thus, it is not a routine or regular promotion, but an exceptional or special promotion. Certainly, it was not based on any merit and ability and on the other hand, it was conferred enmasse on all those persons who joined STF.

35. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision-making process remains bad. [
Vide Haji T.M.Hassan Rawther v. Kerala Financial Corporation
(1988) 1 SCC 166;
Rash Lal Yadav (Dr.) v. State of Bihar
(
1994) 5 SCC 267 and Tata Cellular v. Union of India
(1994) 6 SCC 651].

36. Granting of accelerated promotions to a group of persons within the same class by leaving the other similarly situated persons, would undoubtedly give room for complaint of discrimination. Then, the question that would arise would be as to when a discrimination would arise? Only if similarly situated persons are not treated alike. In other words, if the equals are differentiated.

37. Thus, we need to consider as to whether there are equals and if so, whether the element of discrimination is apparent in this case. Even though, we are not called upon to decide as to whether the accelerated promotions given on these Appellants are valid or not, as the Appellants seek further benefit of seniority in the accelerated promoted cadre, incidentally, we need to examine as to whether such promotion given to those persons are made in such a way to confer the seniority benefit also as a matter of right.

38. When the Appellants and other police personnel, who were granted accelerated promotion, claim continued benefit of the accelerated promotion in the higher cadre to the detriment of their seniors in the lower category, it is the solemn duty of the Court to examine whether accelerated promotions have been granted with reference to any statutory rules. We need to consider whether action of the State Government conferring accelerated promotion was fair and whether there was procedural fairness. Otherwise it would amount to perpetuating the discrimination where the authority offends the fundamental fairness.

39. In our considered view, notwithstanding non-challenge to G.O.Ms.No.1252, Home, dated 29.10.2004, the Court is bound to examine the arguments advanced by the contesting Respondents that accelerated promotion was without reference to any statutory rules or in accordance with the executive order. When the persons of the same cadre have been granted accelerated promotion without reference to statutory rules, it does not confer a legal right on the Appellants to get the seniority in the promotional position.

40. Though accelerated promotion granted to the Appellants and number of other police personnel was not challenged, it shall not preclude this Court from examining whether the accelerated promotion was with reference to any rules and whether accelerated promotees can claim seniority in the promotional position over their seniors in the lower category. Examination whether accelerated promotion was with reference to any statutory rules is necessary for the limited purpose of considering whether the accelerated promotees can claim consequential seniority. Merely because G.O.Ms.No.1252 Home dated 29.10.2004 was not challenged, regular promotees are not precluded from contending that accelerated promotion was without reference to any statutory rules and that accelerated promotees cannot claim consequential seniority in the higher position.

41. Accelerated promotion was not on appraisal of individual's merit and ability:-

Let us now consider the accelerated promotion awarded to the group of persons who were part of S.T.F. The Rules governing the service conditions of the Govt. Employees nowhere define "Accelerated Promotion". Ordinary Dictionary meaning, if taken aid, defines the word "accelerate" as "begin to move more quickly". Thus, an event which is otherwise to take place in an usual course, is triggered and allowed to take place instantly or quickly.

42. In other words it means to say the beneficiary "Do not wait for your turn ; Take it right now". By doing so, a future benefit is dragged into the present life and conferred upon a person or persons. Then, the question would be as to whether those persons are set apart in a separate class by themselves or they need to be considered within the same class of persons to which they originally belonged. Certainly, the benefit of promotion granted instantly is not like any other service benefit, like increment or higher grade or incentive etc., but it is pushing them to the next higher stage. Hence such conferment of benefit must be within the statutory limits and bounds and not on extraneous considerations or reasons.

43. G.O.Ms.No.468 Home dated 19.3.1996 contemplates detailed procedure to be followed in awarding accelerated promotion for outstanding performance in the professional achievement or in the field of sports. As per G.O.Ms.No.468 dated 19.3.1996, for awarding accelerated promotion the professional achievements and sports are prescribed as under:-

Professional Achievements:

1.Performance of High Order and Exceptional Personal ability in achieving Operational success at Great risk to personal lift.

2.Professional competency of a very high order in detecting sensational murder, dacoity, robbery and other such cases having ramification in other parts of the country and its successful prosecution.

Sports Achievements:

3.Successful performance in the All India Police Duty meet by securing First Rank in scientific aids to investigation, computers, Motor Transport and Revolver and Rifle Shooting.

4.Representing the country in the International meets.

5.Securing Gold Medal in National/All India Police Meets.

6.Creating new National/All India Police Meet Records.

For awarding accelerated promotion for sports achievements, the police personnel must have blemish-free-professional record. The Director General of Police has to send necessary proposal to the Secretary of the Board and Secretary of the Board shall submit them before the Board for its consideration and decision.

44. In the Government letter No.133841/Pol.III 96-1 Home dated 27.1.1997 addressed to the Director General of Police, it was stated that accelerated promotion cannot be treated as a routine affair and the proposals have to be placed before the Board with full details and justification. In the said letter it was further stated that accelerated promotion should be based on one's role in the action and nature of the risk taken by the individual during the adventure/event. The said letter No.133841/Pol.III 96-1 Home dated 27.1.1997 addressed to the Director General of Police reads as under:

"I am directed to state that as per the orders issued in G.O.Ms.No.468, Home, dated 19.3.1996 the Board of accelerated promotion will consider the cases for accelerated promotion for both professional achievements and for achievements in sports. For achievements in sports, the Board shall consider the cases on an annual basis and for professional achievements the cases shall be considered as and when occasion arises. As such, the cases for accelerated promotion for professional achievements have to be placed before the Board with full details for its consideration and decision.

2. In this connection, I am to point out that as accelerated promotion cannot be treated as a route affair,the proposals have to be placed before the Board with full details and justification. The proposals received by the Government contain only the names of the Police Officers who were recommended for accelerated promotion and promotion from which rank to which higher rank. As such, I am to request you to send the proposals for accelerated promotion in a Proforma (standard format) containing the following details along with relevant records for examinations of the Government.

(i)Details regarding the incident/encounter/adventure/event.

(ii)The No. of Police Personnel involved in the concerned Police team.

(iii)The role played by each individual duly indicating the performance of High Order and exceptional personal ability in achieving operational success at great risk to personal life done by the individual during the adventure/event.

(iv)Whether all the police personnel in the team should be given accelerated promotion. It should be based on one's role in the action and the nature of the risk taken by the individual. Being a mere member in the team will not give any right to the officer for accelerated promotion.

(v)Whether other incentives such as each reward or advance increments/advancing seniority will be sufficient.

(vi)The service record of the individual and defaulter sheet (as per the said instructions the Police personnel must have blemish free professional record).

(vii)The relevant rules need to be relaxed in favour of the individual.

(viii)Service particulars of the individual.

(ix)Justification for accelerated promotion.

(x)The No. of seniors to be over looked if accelerated promotion is to be given to the individual."

45. Combined reading of G.O.Ms.468, Home, dated 19.3.1996 and the said Government letter dated 27.1.1997 would reveal that accelerated promotion cannot be treated as a routine affair and the same is to be placed before the Board with full details and justification. Proposal has to be sent for accelerated promotion containing the particulars as stated in G.O.No.468, Home, dated 19.3.1996.

46. The learned single Judge extracted G.O.Ms.No.468, Home, dated 19.3.1996 and also the said letter dated 27.1.1997. In the Writ Court, records relating to accelerated promotion were produced and the single Judge perused the same. Upon perusal of the records, the learned single Judge observed that no individual appraisal of the acts of the bravery was considered either by the Director General of Police or by the Board constituted for such purpose. We may usefully refer to the findings of the learned single Judge on perusal of the records, which reads as under:

The records have been produced and I have perused the same. From the letter of the Director General of Police dated 22.10.2004 and 25.10.2004 and the minutes of the accelerated promotion committee meeting held on 25.10.2004, it could be seen that there was no such individual appraisals of the acts of bravery was considered either by the Director General of Police or by the Board constituted for such purpose.
We do not find any reason to take a different view.

47. Special Rules for Tamil Nadu Police Subordinate Service apply to the police personnel in the rank of Inspectors of Police, Sub-Inspectors, Head Constable, etc., In Special Rules for Tamil Nadu Police Subordinate Service, there is no provision for grant of accelerated promotion. As per Rule 42 of Special Rules for Tamil Nadu Police Subordinate Service, the provisions of the general rules in Part II of the Tamil Nadu State and Subordinate Service Rules shall apply to the members of service except to the extent expressly provided to the Special Rules for Tamil Nadu Police Subordinate Service. Rule 36(b)(ii)(2) of Tamil Nadu S & SS Rules provided for promotion for conspicuous merit and ability. As discussed infra, accelerated promotion was without reference to any statutory rules.

48. The accelerated promotion awarded to the Special Task Force team was not in accordance with the executive instructions in G.O.Ms.No.468, Home, dated 19.3.1996 and the said Government letter No.133841/Pol.III 96-1, Home, dated 27.1.1997. In this case, admittedly no such twin test of merit and ability was considered. Whether each of the police personnel in S.T.F. team had blemish-free record of service was also not considered. On the other hand, all persons who joined the STF were given one such accelerated promotion irrespective of their individual role played in the STF. Therefore, the other persons viz., the contesting Respondents in these appeals have not chosen to challenge the promotion, may be by considering the same as one time measure like any other reward.

49. Accelerated promotion was without reference to any statutory rules:- As per Tamil Nadu Police Subordinate Service Rules and Special Rules for Tamil Nadu Police Subordinate Service, right from the post of Sub-Inspector of Police, post is promotional based on merit cum seniority. For promotion from the cadre of Head Constable Grade I and also Sub-Inspectors of Police and Inspectors of Police, Special Rules for Tamil Nadu Police Subordinate Service and executive instructions prescribe certain qualifications. The following qualifications/conditions are prescribed as per the Service Rules/Executive Orders passed from time to time for promotion to various ranks.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Rank Restriction/Condition for promotion
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Additional Superintendent of Police 1.Must be an approved probationer in the
post of Deputy Superintendent of Police.

2.Must have completed 4 years of service
in the post of Deputy Superintendent of
Police on the crucial date.

3.Of which one should have served for 1 year
in the specified area under rule 4(B) and 4(E)
of the Tamil Nadu Police Service Special Rule.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Deputy Superintendent of Police 1.Must be an approved Probationer in the post
of Inspector of Police.

2.Must have completed 5 years of service
in the post of Inspector of Police on the
crucial date.

3.Of which one should have served for 2 years
in the specified areas under

rule 4 (B) and 4(E) of the TNPS Special Rule.

4.Should not have attained the age of 55 years
on the crucial date.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Inspector of Police i) As per rule 3(c) of Special Rules for
the Tamil Nadu Police Subordinate Service,
Sub Inspectors of Police (Local) who have
not completed 55 years of age on the
first date of the year in which
the recommendation for inclusion of name
in the list is made shall be included in
the panel of Sub-Inspectors of Police fit
for promotion as Inspector of
Police (Local)
In the case of promotion from the rank
of Sub-Inspectors of Police (Armed Reserve)
to Inspector of Police (Armed Reserve)
there is no age limit.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Sub Inspector of Police (Local) As per rule 3(d) (ii) of Special Rules for
the Tamil Nadu Police Subordinate Service,
Head Constable (Local) who have not completed
the age of 53 years on the first day of
July of the year in which the selection
for appointment is made, shall be included
in the "C" list of Head Constable (Local) fit
for promotion as Sub Inspector (Local)
by conducting Range Promotion Board.

They must have completed a total service
of 7 years and must have served as
Head Constable whether permanent or
officiating for a period of not less than
4 years on the date of commencement of
training.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Sub-Inspector of Police (AR) As per rules 3(dd) of Special Rules for the
Tamil Nadu Police Subordinate Service,
Head Constables (Armed Reserve) who have
not completed the age of 55 years on the
first day of July of the year in which
the selection for appointment is made,
shall be included in the "C" list
of Head Constable (Armed Reserve) fit
for promotion as Sub Inspector of
Police (Armed Reserve) by conducting
Range Promotion Board. They must have
completed a total service of 7 years and
must have served as Head Constable
whether permanent or officiating for
period of not less than 4 years on the date
of commencement of training.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Head Constable Grade I PCs on completion of 5 years service
with a total service of 15 years are eligible
for promotion as Head Constable in the
upgraded post.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Grade I PC As per G.O.Ms.No.1681, Home Department
dated 12.10.1992, G.O.Ms.No.844,
Home Department dated 08.6.1997 and
Government letter No.107160/Pol.V/97-2,
dated 07.01.1998, Grade II PCs on
completion of 10 years of service are
eligible for promotion as Grade I PC
in the upgraded post.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

50. The Appellants, who were working as Deputy Superintendent of Police and many other police personnel who were in Special Task Force, were lacking pre-requisite qualification for the next level of promotion. For promotion as Additional Superintendent of Police, Deputy Superintendent of Police must have completed four years of service in the post of Deputy Superintendent of Police and as per Rule 4(E) should have served one year service in communally sensitive District/special units. In the case of M.Sundararajan (2nd appellant in W.A.No.849 of 2010) and
C.P.C
hitrarasu (3rd appellant in W.A.No.849 of 2010) have not completed four years of service in the post of Deputy Superintendent of Police and thus lacked pre-requisite qualification for further promotion. The Appellants - M.Sundararajan (2nd appellant in W.A.No.849 of 2010 and
C.P.C
hitrarasu (3rd appellant in W.A.No.849 of 2010) and K.Govindaraju (Petitioner in W.P.No.36553 of 2007) have not satisfied the pre-requisite qualification of one year service in communally sensitive District/Special units.

51. Paragraph 5(d) of G.O.Ms.No.1252 Home Department dated 29.10.2004 states that "relaxation of restrictions/conditions prescribed for promotion in the rules/Government Order, conditions for accelerated promotion and amendment to the relevant rules wherever necessary will be issued as a one time measure, separately. The Director General of Police is requested to send suitable proposals in this regard". Referring to rule and the case of Appellants as to how they lack pre-requisite qualification, in the tabular column given in Paragraph (9) of the counter, it is stated "rules relaxed infavour of the Writ Petitioners". In the counter, in the tabular column in Para No.(9), though it is stated that rules were relaxed infavour of Writ Petitioners, no Government Order was produced saying relaxation of pre-requisite qualification/restrictions.In Para 34 of the counter, it is stated "that the orders for the relaxation of accelerated promotees in the newly created supernumerary posts are pending for relaxation of service rules. During arguments, though it was submitted that rules were relaxed in favour of writ petitioners, no Government Order was produced showing relaxation of pre-requisite qualification/restrictions.

52. Paragraph 5(f) of G.O.Ms.No.1252 Home Department dated 29.10.2004 states that "the Inspectors of Police who are granted accelerated promotion to the rank of Deputy Superintendents of Police are appointed temporarily and their services would be regularised after obtaining the concurrence of Tamil Nadu Public Service Commission separately". No material was produced showing that concurrence of Tamil Nadu Public Service Commission was obtained for promotion of Inspectors of Police to the rank of Deputy Superintendents of Police.

53. For the accelerated promotions, promotional position right from the rank of Sub-Inspector of Police are the selection post. Rule 3(b) of Special Rules for Tamil Nadu Police Subordinate Service deals with method of appointment and promotion. Rule 3(b)(ii)(a) of Special Rules for Tamil Nadu Police Subordinate Service deals with promotion to the cadre of Inspectors. Rule 3(b)(ii)(b) deals with promotion to the cadre of Sub-Inspector of Police. Promotion shall be made from a list of qualified candidates suitable for promotion prepared and finalised by the State Board/Range Promotion Board constituted as per Rule 3(b)(ii)(a) and (b). Rules prescribe requisite qualification for promotion to Inspectors of Police, Sub-Inspectors of Police and also Head Constables and Grade I Police Constables. In G.O.1252, Home, dated 29.10.2004, number of police personnel in the cadre of Sub-Inspectors of Police, Head Constables, Police Constables - Grade I and Grade-II were given accelerated promotion. Number of police personnel of S.T.F are stated to be lacking pre-requisite qualification. However, no material was produced before us showing the relaxation of essential pre-requisite qualification for awarding accelerated promotion.

54. Even if G.O. Ms.No. 798 Home dated 05.6.2007 is to be treated as a Government Order relaxing the rules, such executive order cannot relax the statutory rules.
In this respect, Mr.R.Singaravelan, learned counsel relied on the judgments reported in Suraj Parkash Gupta and Others Vs. State of J&K and Others ((2000) 7 SCC 561);
State of Orissa and Another Vs. Mamata Mohanty
((2011) 3 SCC 436; Dr. Rashmi Srivastava Vs.Vikram University and Others ((1995) 3 SCC 653;
S.I. Paras Kumar and Others Vs. S.I.Ram Charan and Others
((2004) 6 SCC 88).

55. When the accelerated promotions were awarded without reference to any statutory rules, or appraisal of individual's merit and ability, the accelerated promotion awarded lacks procedural fairness. If the procedure adopted by the authority offends the fundamental fairness, suggestive of discrimination, we need to examine as to whether such promotions given to the accelerated promotees would also confer seniority benefit as a matter of right.

56. Even though we are not called upon to decide as to whether accelerated promotions given to these Appellants is valid or not, as the Appellants seek further benefit of seniority in the accelerated promoted category, incidentally, we need to examine as to whether such promotion given to these persons are made in such a way to confer the seniority benefit also as a matter of right. Doors of the court cannot be shut to the regular promotees in making their submissions in respect of G.O.Ms.No.1252, Home, dated 29.10.2004 on the ground that they have not chosen to challenge G.O.Ms.No.1252, Home, dated 29.10.2004. When the action of the Government lacks procedural fairness, we need to examine whether the accelerated promotion confer any legal right on the Appellants and other police personnel to get seniority in the promotional position over their seniors in lower category.

57. Points 3 to 7:-

Mr.Vijay Narayan, learned Senior Counsel for Appellants submitted that Rule 35(aa) of TNS & SS Rules deals with seniority of the persons, where the normal method of recruitment is by more than one method of recruitment and Rule 35(aa) is not applicable to the accelerated promotion. The learned Senior Counsel contended that the Appellants were given accelerated promotion under Rule 36(b)(ii)(2) of TNS & SS Rules, which contemplates special kind of promotion and when the persons were given special promotion on the ground of conspicuous merit and ability, it is not under the same method of recruitment and therefore the proviso to Rule 35(aa) will not apply. It was further contended that the persons, who were given accelerated promotion for their merit and ability, are entitled to consequential seniority or otherwise accelerated promotion given to the Appellants would become meaningless. The learned Senior Counsel urged that there was no ambiguity in G.O.Ms.No.1252 Home dated 29.10.2004, G.O.Ms.No.1396, Home dated 3.10.2007 was issued by the Government misconstruing the scope of the earlier Government Orders.

58. Learned Senior Counsel Mr.Vijay Narayan has relied on the following decisions:-

(
i)G.K.DUDANI AND OTHERS VS. S.D.SHARMA AND OTHERS
, (1986 (SUPP) SCC 239) to contend that promotees appointed to temporary additional posts which were initially created for one year but still continuing, as also those initially appointed to cadre posts but later deputed to hold ex cadre posts, held, also fall within the category of "regularly appointed" and the rule of continuous length of service would apply to them also with effect from the date of their such appointments. Regular appointment includes appointment to fill vacancies in temporary additional posts.

(
ii)UNION OF INDIA VS. DR.AKHILESH CHANDRA AGRAWAL
, (1998) 4 SCC 107 to contend that supernumerary posts were not to be treated different from regular posts and the incumbents of supernumerary posts could be conferred administrative powers.

(
iii)UNION OF INDIA v. PUSHPA RANI AND OTHERS
[(2008) 9 SCC 242 to contend that appointment of employees to higher pay scales against additional posts created as a result of restructuring was a promotion particularly when employees' fitness was judged with reference to their service records and judicial review comes into play only if State action is contrary to constitutional or statutory provisions and it is not for the Court to lay down methodology of recruitment.

(
iv)J.S.YADAV v. STATE OF U.P.
[(2011) 6 SCC 570 to contend that cadre may also include temporary, supernumerary and shadow posts created in different grades and in service jurisprudence if an unsuccessful candidate challenges selection process, he is bound to include at least some of successful candidates in representative capacity and no order can be order behind the back of a person adversely affecting him and such an order if passed is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.

(
v)State of Karnataka and others v. K.Govindappa and another
[(2009) 1 SCC 1] to contend that a single post can also constitute a cadre for the purpose of reservation and "cadre" "post" and "Service" are different concepts.

59. The learned counsel for Appellants Mr.N.G.R.Prasad submitted that by the special promotion was given under Rule 36(b)(ii)(2) of TNS & SS Rules, which itself says that rule of seniority need not be followed and impugned G.O.Ms.No.1396 Home dated 03.10.2007 is directly opposed to Rule 36(b)(ii)(2). The learned counsel submitted that Rule 36(b)(ii)(2) is an exception to Rule 35 and the accelerated promotion, which comes under Rule 36(b)(2)(ii) is not governed by Rule 35(a) and there is no need to follow Rule 35(a) and 35(aa) in the case of special promotion. The learned counsel further submitted that the accelerated promotees are not encroaching the regular vacancies and they were all accommodated in supernumerary posts from where they are absorbed in the higher post. By issuing G.O.Ms.No.1252 Home dated 29.10.2004 and other Government Orders, Government decided to give accelerated promotion and accelerated seniority for the acts of bravery and while so, by a subsequent Government Order, Government cannot withdraw the special promotion given to the Appellants. The learned Counsel submitted that the Appellants were given promotion for their merit and ability under Rule 36(b)(ii)(2), which is an exception to General Rule 35(a).

60. Learned counsel Mr.A.Prabhakara Reddy submitted that Rule 35(a) and Rule 36(b)(ii)(2) are totally different and accelerated promotion was given in terms of Rule 36(b)(ii)(2) for merit and ability of the Appellants and other police personnel, who served in Special Task Force and Rule 36(b)(2)(ii) is an exception of Rule 35(a) and the accelerated promotees are entitled to consequential seniority.

61. Contention of the learned counsels appearing for the accelerated promotees is that Rule 35(aa) of TNS & SS Rules cannot be made applicable to their case so as to determine their seniority with reference to the date on which they were initially appointed to the service. Their contention is that Rule 35(aa) is applicable only in respect of persons appointed to the post under the same method of recruitment. As the promotions given to the appellants/accelerated promotees were not under the same method of recruitment, such promotion cannot be construed as a recruitment made under the same method as contemplated under Rule 35(aa). According to them, it is a special promotion given under Rule 36(b)(ii)(2) and therefore Rule 35(aa) will not come into play. If Rule 35(aa) is not applicable, then they are automatically entitled to get their seniority fixed at the bottom of the list of cadre to which they were promoted . Thus, according to them the date of promotion is the crucial date for fixing their seniority.

62. Per contra, it is the contention of the contesting Respondents that the phrase appointed by a particular method of recruitment appearing in the first proviso to Rue 35(aa) is not referable to the promotion but on the other hand, it is referable to the initial appointment. Thus, according to them, as the contesting respondents/ seniors and the appellants/ accelerated promotees were appointed by the same method of recruitment to the feeder category, the seniority of all these persons be determined only with reference to the date on which they were appointed to the feeder category. In other words, as contemplated under the proviso, if the junior who was also appointed to the feeder category by the same method of recruitment, happens to be promoted to a service, class, category or grade, earlier than the senior who was also appointed by the same method of recruitment, the senior shall be determined to have been appointed to the service on the same day, on which the junior was so appointed.

63. The contesting Respondents would contend that the question of fixing seniority for Additional Superintendent of Police or any other category has to be strictly in accordance with General Rule 35(a) and 35(aa) and executive orders cannot override the statutory rules. It was further submitted that seniority of the contesting Respondents in the case of Tamil Nadu Police Service is governed by Tamil Nadu State and Subordinate Service Rules by Rule 35(a) and 35(aa) and the seniority of the police in the cadre of Inspector of Police and Sub-Inspector of Police is governed by Rule 25 of the Special Rules for the Tamil Nadu Police Subordinate Service. It was contended that the seniority is fixed the moment they are appointed and the person carries his seniority with him throughout his service and Rule 36(b)(ii)(2) has no applicability in case of special promotion, which was awarded as an incentive to the Special Task Force.

64. As discussed earlier, accelerated promotion was not a regular promotion; but given with a view to encourage the Officers, who were part of Special Task Force. Accelerated promotion was given to all the persons who joined the Special Task Force irrespective of their individual role played by Special Task Force. Certainly it was not based on appraisal of individual's merit and ability and on the other hand it was conferred enmasse of those persons, who joined Special Task Force. When there was no appraisal of individual's merit and ability, accelerated promotion cannot be given with the accelerated seniority so as to benefit the accelerated promotees to steal a march over all the regularly appointed officers/personnel.

65. To consider the contentions advanced by the Appellants and the Respondents, we may usefully refer to certain Tamil Nadu State and Subordinate Service Rules and Special rules for Tamil Nadu Police Subordinate Service. Rule 2 of Tamil Nadu State and Subordinate Service Rules deals with definitions. Rule 2(1) defines "Appointed to a Service" as under:

"A person is said to be "appointed to a service" when in accordance with these rules or in accordance with the rules or in accordance with the rules applicable at the time, as the case may be, he discharges, for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.

*(Explanation  The appointment of a person holding a post borne on the cadre of one service to hold additional charge of a higher post in the same service or a post borne on the cadre of another service or to discharge the current duties thereof does not amount to appointment to the latter service.)"

66. Rule 2(10) defines "Member of a Service" as under:-

"Member of a service" means a person who has been appointed to that service and who has not retired or resigned, been removed or dismissed, been substantively transferred or reduced to another service or been discharged otherwise than for want of vacancy. He may be a probationer, an approved probationer or a full member of that service."

Rule 2(13) defines "Promotion" as under:

""Promotion" Means the appointment of a member of any category or grade of service or class of service to a higher category or grade of such service or class."

67. Rule 2(14) of the said Rules defines direct recruitment whereas Rule 2(15) defines  Recruitment by transfer. Thus, two methods of recruitments are defined under the above said sub-clauses (14) and (15) and they read as under:-

"Rule 2(14)- Recruited direct:

(14) A candidate is said to be recruited direct to a service,class, category or post when, in case his first appointment thereto has to be made in consultation with the Commission, on the date of its notification inviting applications for the recruitment and in any other case, at the time of his first appointment thereto, he is not in the service of the Government of India or the Government of a State
Provided that for the purposes of this definition person shall be deemed to be not in the service of the Government of India or the Government of a State

(i) If a period of five years has not elapsed since his first appointment to a service of the Government of India or the Government of a State; or

(ii) If he belongs to the Schedule Castes, Schedules Tribes or Backward Classes:-

Rule 2(5) - Recruited by transfer:

(15) A candidate is said to be "recruited by transfer" to a service

(a) If , at the time of his first appointment thereto,he is either a full member or an approved probationer in the Madras High Court Service or in any other service, the rules for which prescribe a period of probation for member thereof; or

(b) in case, at the time of his first appointment thereto, he is the holder of a post which has been included in another service but for which no probation has been prescribed, if he has put in that post satisfactory service for a total period of two years on duty within a continuous period of three years.

Explanation : Where the special rules for a service provide for recruitment to that service or to any class or category thereof by transfer from any specified service, class, or category, a candidate need not, for the purposes of such recruitment, be a full member or an approved probationer in the service, class or category so specified, provided he is a full member or an proved probationer in any other service class or category:"

68. Rule 35(a) of TNS & SS Rules deals with seniority of a person in a service, class or category or Grade. Rule 35(a), 35(aa) and proviso to Rule 35(aa) read as under:-

"35 (a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.

(aa) The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade;

Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:

Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se seniority:

Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age."

69. Rule 36 of Tamil Nadu State and Subordinate Service Rules reads as under:-

(a) Promotion  No member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category.

Provided that a member of a service or class of a service who, having satisfactorily completed his probation in the category in which he was appointed to the Service, has been promoted to the next higher category shall, notwithstanding that he has not been declared to have satisfactorily completed his probation in such higher category be eligible for promotion from such higher category:

Provided further that if scales of pay of posts in the feeder categories are different, the persons holding post carrying a higher scale of pay in the feeder category shall be considered first and that, if no qualified and suitable persons holding post in that feeder category are available, the persons holding post carrying the next higher scale of pay in descending order in other feeder categories shall be considered.

(b) (i) Promotions to selection category or grade  Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority, being considered only where merit and ability are approximately equal. The inter-se-seniority among the persons found suitable for such promotion shall be with reference to the inter-se-seniority of such persons in the lower post.

(ii) Promotion according to seniority  All other promotions shall, be made in accordance with seniority unless -

(1)the promotion of a Member has been withheld as a penalty, or
(2)a Member is given special promotion for conspicuous merit and ability.

70. A combined reading of all the above definition rules along with proviso to Rule 35(aa), would undoubtedly show that the contention of the respondents in these writ appeals are correct and justifiable one. The phrase used " junior appointed by a particular method of recruitment" in the proviso is referable only to the initial appointment to the service made by a particular method of recruitment and not to the subsequent promotion viz., the accelerated promotion as in this case. Otherwise, there is no necessity to spell out two types of appointment at two places in the said proviso. Therefore, as the juniors admittedly appointed with the same method of recruitment if promoted earlier than their seniors, who were also appointed by the same method of recruitment, then the seniors shall be deemed to have been appointed to the service on the same day on which the junior was so appointed. To put it simply "appointed by a particular method of recruitment" is relatable to the initial appointment at feeder category and "appointed to a service" is referable to the promoted post. Certainly recruitment and promotion are two different and distinct factors in service law. Recruitment is the stage of entering into service, whereas promotion is a benefit derived in the service. Consequently, as per Rule 35(aa) the seniors are deemed to have been appointed to the service on the same day on which the juniors were so appointed.

71. First of all, it should not be forgotten that the question of applicability of Rule 35(aa) would arise only when the promotion was made in accordance with Rule 36(b)(ii)(2). As we have found that the promotion was not made in accordance with rules and it is not a promotion under Rule 36(b)(ii)(2), consequently, such promotion having been granted outside the purview of the Rules cannot have any consequential benefit of accelerated seniority as well. Even assuming that the promotion was made under Rule 36(b)(ii)(2), then again by applying Rule 35 (aa), the accelerated promotees cannot over look their seniors to get accelerated seniority in the promoted post.

72. The seniority of Police Officers in the cadre of Tamil Nadu Police Service is governed by TNS & SS Rules. Under Tamil Nadu State and Subordinate Service Rules, seniority of a person is to be determined as per General Rule 35(a) of TNS & SS Rules, unless otherwise provided in the Special Rules for Tamil Nadu Police Subordinate Service. As per Rule 35(a), seniority of a person shall, unless he has been reduced to lower rank, as punishment be determined either by the rank obtained by him, the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authorities, as the case may be or the date of appointment. Rule 36(b)(ii)(2) of TNS & SS Rules provides for giving special promotion for conspicuous merit and ability to the members. As such the special promotion is possible for persons only if they satisfy the parameters in Rule 36(b)(ii)(2) of TNS & SS Rules. In the case of Sub Inspectors, the seniority shall be fixed on the basis of the marks obtained by them in the final examination in the Police Training College, Bangalore.

73. The seniority of the police officers of Tamil Nadu Police Service is governed by Tamil Nadu State and Subordinate Service Rules. Seniority of the Officers in the cadre of Inspectors, Sub-Inspectors of Police, Grade I Police Constables and Police Constables is governed by Rule 25 of Special Rules for Tamil Nadu Police Subordinate Service. Rule 25 of Special Rules for Tamil Nadu Police Subordinate Service reads as under:-

"Rule 25. Seniority:

(a) The seniority of a person in any class or category of the service shall, unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the appointing authority, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority unless he has been appointed temporarily under sub rule (d) of rule 10 or sub rule (b) of rule 15 as the case may be. ..........."

74. The question of fixing seniority for Additional Superintendent of Police or any other cadre of Tamil Nadu Police Service has to be n accordance with General Rule 35(a) and Rule 35(aa). In the case of Inspectors of Police, Sub-Inspectors of Police, Head Constables, etc., the seniority has to be in accordance with Rule 25 of Special Rules for Tamil Nadu Police Subordinate Service.

75. Officers in the cadre of Tamil Nadu Police Service and other officers are thus governed by statutory rules viz., Tamil Nadu State and Subordinate Service Rules and Special Rules for Tamil Nadu Police Subordinate Service. The executive orders issued in G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346 Home dated 06.12.2004 did not clearly indicate the panel position of accelerated promotees. The reason being as per Para 5(e), the accelerated promotees were placed at the bottom of the seniority list of the respective category by creation of supernumerary posts. There is no rule available in the Special Rules for Tamil Nadu Police Service or among other statutory rules for giving consequential seniority to the accelerated promotees among the police personnel. Giving consequential seniority to the accelerated promotees will give rise to the situation of reduction in the rank of their seniors and the same is contrary to General Rule 35.

76. In the counter filed by the Government in the Writ Court, it is clearly averred that there was ambiguity over panel position of the accelerated promotees vis-a-vis regular promotees and the same was clarified by G.O.Ms.No.1396 Home dated 03.10.2007. The clarification was issued in G.O.Ms.No.1396 dated 03.10.2007 in consonance with the intention of the Government as well as General Rule 35. Clarifying the position and substituting Para 5(e) occurring in G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346 Home dated 06.12.2004, in G.O.Ms.No.1396 Home dated 03.10.2007, it is stated as under:-

3 (ii) For the para 5 (e) occurring in G.O.Ms.No.1252, Home (Pol.VIII) Department, dated 29.10.2004 and G.O.Ms.No.1346, Home (Pol.VIII) Department, dated 6.12.2004 the following shall be substituted.

"The seniority between the accelerated promotees and the general promotees in the promoted category shall continue to be governed by their panel position i.e. with reference to their interse seniority in the lower grade. At any stage the accelerated promotion will not give the individual accelerated consequential seniority, since the accelerated promotion is only for one stage."

(iii) The concept indicated in para 3 (ii) above is also applicable to the persons who have been awarded accelerated promotion in individual orders from time to time to the extent it applies to future promotion. The above principle will apply also in cases of accelerated promotion to be considered in future.

77. The above Para 3(ii) of G.O.Ms.No.1396 Home dated 03.10.2007 makes it clear that the concept indicated in Para 3(ii) is also applicable to the persons who have been awarded accelerated promotion in individual orders from time to time to the extent it applies to future promotion. By virtue of G.O.Ms.No.1357 Home dated 06.12.2004, three persons viz., (i) S.Vellaidurai, Inspector of Police; (ii) M.Saravanan, Head Constable and (iii) V.Kumaresan, Gr.I Police Constable who got accelerated promotion in G.O.Ms.No.1252 Home dated 29.10.2004 were given further promotion. Even though in the references made in G.O.Ms.No.1396 Home dated 03.10.2007, G.O.Ms.No.1357 dated 06.12.2004 was not referred to, Para 3 (iii) would cover G.O.Ms.No.1357 dated 06.12.2004 and all other Government Orders/individual orders under which persons have been awarded accelerated promotion.

78. Immediately, after issuing G.O.Ms.No.1396 Home dated 03.10.2007, Writ Petitions in W.P.Nos.35716, 36553, 33375, 37136 to 37141 of 2007 and W.P.Nos.8417, 3455, 8855, 3905, 10760, 2939 of 2008 were filed challenging G.O.Ms.No.1396 dated 03.10.2007 and the Writ Petitions were dismissed by the learned single Judge on 14.10.2009. Thereafter, G.O.Ms.No.1396 dated 03.10.2007 was given effect to by amending the Special rules for Tamil Nadu Police Subordinate Service as notified in G.O.Ms.No.227 Home dated 25.2.2010 which reads as under:-

AMENDMENT
In the said Rules, in rule 24, after sub-rule (f), the following sub-rule shall be added, namely:-

(g) The inter-se-seniority between between the accelerated promotees and the general promotees in the promoted category shall be in the order of seniority in the feeder category (lower category) and the accelerated promotion will not confer any consequential seniority on such accelerated promotees either in the feeder category or in the promoted category."

79. A feeble attempt was made to contend that by virtue of G.O.Ms.No.227, Home, dated 25.2.2010, the Special Rules for Tamil Nadu Police Subordinate Service was only amended and that the same cannot be construed as an amendment to Tamil Nadu State and Subordinate Service Rules. It was therefore contended that G.O.Ms.No.227, Home, dated 25.2.2010 would have no bearing on the accelerated promotion given to Deputy Superintendents of Police, whose service conditions are governed by Tamil Nadu State and Subordinate Service Rules. The above contention does not merit acceptance. As discussed earlier, in clear terms, G.O.Ms.No.1396, Home dated 3.10.2007 deleted paragraph No.5(e) of G.O.Ms.No.1252, Home, dated 29.10.2004 and G.O.Ms.No.1346 Home dated 06.12.2004 restoring the original seniority. Therefore, the Appellants cannot harp upon the issuance of Government Order or otherwise.

80. Even though in G.O.Ms.No.1396 Home dated 03.10.2007, the accelerated promotion given to the police personnel is stated to be by virtue of General Rule 36(b)(ii)(2) of TNS & SS Rules, the accelerated promotion given is not actually referable to Rule 36(b)(ii)(2). As discussed earlier, the accelerated promotion provided is not referable to any rules, but by means of executive orders. The Government in its own appreciation to the operation, granted accelerated promotion. The accelerated promotion was not based on the individual's role in the action and the nature of the risk taken by the individual. When the promotion was made without reference to any rules, the Appellants and other police personnel cannot claim seniority over their seniors who are regularly promoted after preparation of a panel. The Government decided to motivate the participants of Special Task Force police personnel by giving them cash award and house site in addition to the accelerated promotion in the newly created supernumerary posts in the respective cadres at the total expenditure of Rs.9.83 crores. Main intention of the Government for creating those supernumerary posts at a huge cost was to avoid stagnation of further promotion to the seniors in the lower category of the accelerated promotees. Accelerated promotees were accommodated by creation of supernumerary posts for a limited period.

81. Whether accelerated promotees who were given out of turn promotion were absorbed in the substantive posts in the higher rank?

748 supernumerary posts were ordered to be created in order to accommodate those who were accorded accelerated promotion. Supernumerary posts so ordered to be created are person oriented and they shall lapse whenever the incumbent vacates the post on retirement from service or otherwise. Sanction was accorded in G.O.Ms.No.798 Home dated 05.6.2007 for creation of 131 supernumerary posts to accommodate those who were accorded accelerated promotion as under:-

----------------------------------------------------------------------

Sl.No. Name of the Post No. of Post

----------------------------------------------------------------------

1. Superintendent of Police 2

----------------------------------------------------------------------

2. Additional Superintendent of Police 7

----------------------------------------------------------------------

3. Deputy Superintendent of Police 35

----------------------------------------------------------------------

4. Inspector of Police 87

----------------------------------------------------------------------

Total 131

----------------------------------------------------------------------

Supernumerary posts were created in their respective cadre at a total expenditure of about 9.83 crores per annum. In Paragraph (6) of the Counter it is averred that "main intention of the Government in creating these supernumerary posts at a huge cost is to avoid the stagnation of further promotions for the seniors of the accelerated promotees in the lower cadre. Due to this, the further promotion and interest of personnel who are senior to the accelerated promotees in the lower cadre are protected and none would be affected".

82. Supernumerary post is defined in Fundamental Rule-9 (30-B) which reads as under:-

"30-B Supernumerary Post means a person oriented post created for a limited period and for a limited purpose to accommodate a person in certain contingencies."

Thus as per Fundamental Rule-9 (30-B), supernumerary posts are person oriented post created for a limited period.

83. In G.O.Ms.No.798 Home dated 05.6.2007, it is stated that 131 supernumerary posts sanctioned are person oriented and they shall lapse whenever the incumbent vacates the post on retirement from service or promotion to the next higher rank or otherwise. Since supernumerary posts are person oriented post created for a limited period and since 131 supernumerary posts were created in the promotional position, the arrangement called for relaxation in Fundamental Rule-9 (30-B) in respect of the said 131 supernumerary posts. Considering the request of the Director General of Police for relaxation of Fundamental Rule 9(30-B) in respect of 131 supernumerary posts and in exercise of powers conferred under Rule 5-A of Fundamental Rules, the Government relaxed the definition (30-B) under Fundamental Rule-9 infavour of 133 supernumerary posts as a one measure, subject to the following conditions:-

"(a) No request shall be entertained for fresh creation in future for the above posts once they start getting set off.

(b) A periodical report may be sent to Government by the Director General of Police till the set off of the accelerated promotees against the permanent vacancy either by promotion or by retirement.

(c) At any given point of time the total operating strength including the supernumerary posts in existence shall not exceed the total sanctioned strength in Police Department.

(d) At any given point of time the total operating strength of a particular post should not exceed the total of the sanctioned strength and the authorized supernumerary posts sanctioned by the Government.

(e) The supernumerary posts shall be in existence till the officers concerned vacates the posts on retirement from service or promotion to the next higher rank or otherwise or the date on which the officer concerned would have otherwise got regular promotion and he should be accommodated against the regular vacancy against which he would have otherwise got promoted, whichever earlier.

(f) The vacancies caused due to accelerated promotion may be filled upon on the abolition of corresponding supernumerary posts in the higher rank."

84. In G.O.Ms.No.798 Home dated 05.6.2007, Paragraph 5(e) is relevant to be noted. Paragraph 5(e) contemplates instances/duration till which supernumerary posts shall be in existence. As per Paragraph 5(e), the supernumerary posts shall be in existence:

(i)till the officers concerned vacates the posts on retirement from service;

or

(ii)promotion to the next higher rank; or otherwise;

or

(iii)the date on which the officer concerned would have otherwise got regular promotion and he should be accommodated against the regular vacancy against which he would have otherwise got promoted, whichever earlier.

85. In the said G.O.Ms.No.798 Home dated 05.6.2007 Paragraph 5(f) makes it very clear that the vacancies caused due to accelerated promotion may be filled up on the abolition of corresponding supernumerary posts in the higher rank. Paragraph 5(f) in G.O.Ms.No.798 Home dated 05.6.2007 will clearly show that in respect of accelerated promotees, the post in their respective lower category shall be kept vacant and the same to be filled up only on abolition of the consequential supernumerary posts. The stipulation to keep vacancies caused due to accelerated promotion vacant and that the same has to be filled up only on abolition of the consequential supernumerary posts would clearly show that accelerated promotees retained their position in the substantive post in the lower category.

86. Now as per the changed stand of the Government, the accelerated promotees have been accommodated in the substantive posts and the accelerated promotees climbed up in the ladder in promotional position. Learned Advocate General produced the seniority lists of the State Police Officers in the rank of Dy. Superintendent of Police as on 01.01.2005 and as on 01.01.2006. By perusal of those seniority lists, it is seen that some of the accelerated promotees have been shown with consequential seniority. We have also noticed that some of the other Police Officers were not shown in the seniority list. It is pertinent to note that seniority lists so produced as on 01.01.2005 and 01.01.2006 were prior to issuance of G.O.Ms.No.1396 Home dated 03.01.2007 clarifying the position. After G.O.Ms.No.1396 dated 03.10.2007, the said seniority lists as on 01.01.2005 and 01.01.2006 will have no bearing on the seniority as the same was revised restoring original seniority.

87. As pointed out earlier, after the dismissal of the Writ Petitions, Government issued G.O.Ms.No.227 Home dated 25.02.2010 giving effect to G.O.Ms.No.1396 dated 03.10.2007 and amending Special Rules for Tamil Nadu Police Subordinate Service, 1978 adding sub-rule (g) to Rule 24. After the amendment, as per Rule 24(g) of Special Rules for Tamil Nadu Police Subordinate Service, the interse seniority between the accelerated promotees and the general promotees in the promoted category in the order of seniority in the feeder category and lower category and accelerated promotees will not confer any consequential seniority on such accelerated promotees either in the feeder category or promoted category. As per the revised seniority list, accelerated promotees were shown in the list as per the original seniority in the feeder category.

88. There is no gainsaying that those who served in the Special Task Force with better performance deserve better treatment. But this has to be done within the frame work of the existing rules. Since accelerated promotion was made without reference to any statutory rules and with a view to clarify the ambiguity, the Government has rightly issued G.O.Ms.No.1396 Home dated 03.10.2007. If promotion was based on merit cum ability and if the person was accommodated in the substantive vacancy in the higher category, the person can seek accelerated seniority as well. Unless such promotion so conferred was made within the rules, there is no question of granting accelerated seniority.

89. Executive instructions cannot override the statutory rules. If the accelerated promotees are given seniority in the higher cadre it will affect the promotion of the person senior to the accelerated promotees in the lower cadre and it will lead to the situation of reduction of rank of their seniors in the lower category and the same is contrary to General Rule 35(a) and 35(aa) and natural justice which will affect the morale of the entire police force.

90. Holding that executive instruction cannot be made against the statutory provision, in
State of Sikkim Vs. Dorjee Tshering Bhutia and Others
(1991 (4) SCC 243, the Hon'ble Supreme Court held as under:-

15. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. ...
The ratio is squarely applicable to the case on hand. Seniority position settled by General Rule 35(a) cannot be upset by executive orders.

91.
In
Govind Prasad Vs. R.G.Prasad and Others
(1994 (1) SCC 437, it was held that executive order cannot be made operative with retrospective effect.

92. Seniority is a civil right and as such it cannot be unsettled by executive instructions.
In (
2010) 4 SCC 301 [H.S.Vankani v. State of Gujarat
], the Hon'ble Supreme Court held as under:-

38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority, etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.

93. Seniority position is settled on appointment and a person carries with him his seniority throughout career, unless reduced to a lower rank as a punishment. Observing that no power to make Rules affecting vested rights, in (
1994) 5 SCC 450 [Union of India and others v. Tushar Ranjan Mohanty and others
], the Hon'ble Supreme Court held as under:-

"12. ..... It is equally well-settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well-recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to
Article 309
which affects or impairs vested rights."

94. The Government Orders in G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346, Home, dated 06.12.2004 giving accelerated promotion did not clearly indicate anything as to the panel position. Seniority once settled is decisive in the upward march in one's career. When seniority position is governed by statutory rules, settled seniority of number of persons cannot be upset by executive order. We are of the view that Government rightly clarified the position by issuing G.O.Ms.No.1396, Home, dated 3.10.2007 and ordering deletion of Para No.5(e) occurring in G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346 Home dated 06.12.2004.

95. Accelerated promotion analogous to promotion given to reserved candidates:-

Mr.R.Muthukumaraswamy, learned Senior Counsel submitted that in cases of accelerated promotion accorded basing on the rule of reservation superseding others, who were seniors in the feeder category, as per decision of the Hon'ble Supreme Court in AJIT SINGH AND OTHERS (II) VS. STATE OF PUNJAB AND OTHERS, (1999) 7 SCC 209, the seniors will rank above the accelerated promotees on reaching that promotional post. Learned Senior counsel submitted that even for the accelerated promotion based on the constitutional mandate of following the rule of reservation, when the seniors will catch up their original seniority, the accelerated promotees, in the present case who got accelerated promotion by means of executive orders, cannot claim consequential seniority in the higher position.

96. Observing that roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post vis-a-vis the general candidates, who were senior to them in the lower category and who were later promoted, in Paragraph No.77 of AJIT SINGH AND OTHERS (II) VS. STATE OF PUNJAB AND OTHERS, (1999) 7 SCC 209, the Hon'ble Supreme Court held as under:

77. We, therefore, hold that the roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate-he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that
Union of India Vs. Virpal Singh
((
1995) 6 SCC 684) and Ajit Singh Januja vs. State of Punjab
, ((1996) 2 SCC 715) have been correctly decided and that Jagdishlal Vs. State of Punjab ((1997) 6 SCC 538) is not correctly decided. Point 1 and 2 are decided accord-ingly.

97. Earlier, in
Ajit Singh Januja vs. State of Punjab
, ((1996) 2 SCC 715) and Jagdishlal Vs. State of Punjab ((1997) 6 SCC 538), the Hon'ble Supreme Court held that the general rule in the service rules relating to the seniority from the date of continuous officiation which was applicable to candidates promoted under the normal seniority/selection procedure would be attracted even to the roster-point promotees as otherwise there would be discrimination against the reserved candidates.

98. The same analogy of promotion is given to the reserved roster point promotees and that their seniors will catch up the original seniority will apply to the present case of accelerated promotees.

99. Learned Senior Counsel Mr.Vijay Narayan submitted that by virtue of accelerated promotion, the accelerated promotees were promoted much earlier than the regular promotees and they carry their seniority in the higher post from the date of their promotion in the higher post and to make them remain in the same position till their seniors in the lower category are promoted would make the accelerated promotion meaningless. The above contention does not merit acceptance. Even for the constitutional mandate of giving promotion based on the reservation, after the decision in AJIT SINGH AND OTHERS (II) VS. STATE OF PUNJAB AND OTHERS, (1999) 7 SCC 209, it was necessitated to bring in 85th amendment to the Constitution by Amendment Act of 2001, which was retrospective with effect from 17.06.1995. Even for fulfillment of the constitutional mandate of providing roster-point promotion when the Constitution has to be amended, by virtue of Executive Orders/instructions, Government cannot override the statutory rules and upset the seniority position much to the detriment of seniors to the accelerated promotees; more so, in the absence of relaxation of rules in individual cases.

100. Option for joining Special Task Force not sought for from the police and therefore, grant of seniority to accelerated promotees would amount to discrimination of equals:- The Government in its own appreciation of bravery service rendered by those chosen persons, who were in the S.T.F, thought fit to grant accelerated promotion in preference to other persons of the same class.

101. In fact Rule 3(g) of Special Rules for Tamil Nadu Police Subordinate Service contemplates granting of promotion temporarily under Rule 15A to the next higher category in such class, if a person is willing to serve in any of special units viz., Special Task Force, etc., and posted to such special units. Therefore, such conferment of promotion, that too, temporarily, under Rule 15A could be made at the entry stage itself into the S.T.F.

102. Considering the scope of Rule 3(g) read with Rule 15A, such benefit of temporary promotion should have been indicated to all similar persons at the initial stage itself while inviting to join S.T.F. Inspite of such indication, if the persons have not opted to join S.T.F., then they cannot complain thereafter that they were discriminated. It is not the case of the Government that other police personnel declined to join the S.T.F when they were directed to exercise their option to do so. In this case, nothing was placed before us to show that the Government had issued a circular seeking the option for joining S.T.F and also indicating that the benefit of accelerated promotion would be given to those who join S.T.F. In the absence of such indication, the persons, who had not opted to join S.T.F. cannot be found fault with and penalised while fixing the seniority in the promotional position with accelerated seniority in total prejudice to the interest of others.

103. Referring to the decision of Hon'ble Supreme Court in (2007) 11 SCC 528 (
Government of A.P. v. G.Jaya Prasad Rao
) and other decisions, the learned single Judge held that the present case on hand, choice was not sought from the police personnel for joining the S.T.F. and that it was not indicated to the police personnel that such benefit of accelerated promotion would be conferred in future if they get to join S.T.F. We fully endorse the views of the learned single Judge.

104. The post, being selection post, requires consideration of eligible and qualified persons. The accelerated promotion was without reference to the statutory rules or G.O.Ms.No.468, Home, dated 19.3.1996. The Appellants and other police personnel were not promoted to the substantive post, but were accommodated by creation of supernumerary post. G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346 Home dated 06.12.2004 did not clearly indicate the panel position of the accelerated promotees. Since there was ambiguity over panel position of the accelerated promotees vis-a-vis regular promotees, considering the representation given by the police officers, Government rightly issued G.O.Ms.No.1396, Home, dated 3.10.2007 deleting Paragraph No.5(e) in G.O.Ms.No.1252 Home, dated 29.10.2004 and G.O.Ms.No.1346, Home dated 6.12.2004 clarifying the position. The Government was well within its power in deleting paragraph No.5(e) and substituting new one in G.O.Ms.No.1396, Home, dated 3.10.2007, the learned single Judge rightly dismissed the writ petitions and we do not find any infirmity in the order of the learned single Judge warranting interference. Consequently, all the Writ Appeals and the Writ Petitions in W.P.Nos.25736 to 25741 of 2010 (in which G.O.Ms.No.1396 Home dated 03.10.2007 is under challenge) are liable to be dismissed.

105. Point No.8:-

Challenge to G.O.Ms.No. 332 Home Department Dated 3.5.2012:

(i) W.P.(MD) No.8911 of 2012 - The case of the petitioner is that he was selected for appointment to the post of Sub-Inspector of Police by direct Recruitment on merits and he joined service in 1987-1988. He was promoted to the post of Inspector of Police in the year 1997 and then to the post of Deputy Superintendent of Police in the year 2008.

(ii) W.P.No. 17731 of 2012 - These petitioners were selected for appointment to the post of Sub-Inspector of Police by direct recruitment on merits and they have joined service in 1987-1988. They were promoted to the post of Inspector of Police and then to the post of Deputy Superintendent of Police. In the said post they are continuously working till this date.

(iii) W.P.No. 20728 of 2012 - The petitioners herein are working as Inspectors of Police and they were recruited as Sub-Inspectors of Police between 1996 and 1999. They were promoted as Inspector of Police on 8.4.2005; 25.9.2010, 13.4.2005; and on 2.7.2010 respectively. They were promoted on the basis of their seniority in the cadre of Sub-Inspector of Police and they are awaiting promotion to the post of Deputy Superintendent of Police.

106. All these three writ petitions were filed challenging G.O.Ms.No. 332 dated 3.5.2012. They are all aggrieved against restoration of consequential seniority to the accelerated promotees.

107. In W.P.No. 20728 of 2012, the petitioners have raised the following grounds:- G.O.Ms.No. 1396 dated 3.10.2007 has been upheld by the learned single Judge on 14.10.2009 against which W.A.Nos.849 to 854 of 2010 have been filed. Issuance of impugned G.O.Ms.No. 332 dated 3.5.2012 during the pendency of W.A.Nos. 849 to 854 of 2010, would amount to overreaching the process of the Court. When the Hon'ble Division Bench had granted only interim stay, the State of Tamil Nadu had taken the grant of interim stay to be a final decision and issued the impugned G.O. and thereby cancelled clause 5(e) in G.O.Ms.No.1396 dated 3.10.2007 which has been upheld by the learned single Judge. The Government having taken a stand before the learned single Judge to the effect that the accelerated promotees would never be given consequential seniority, cannot now change its stand and issue the impugned G.O. Before issuing the impugned G.O., no opportunity was given to the persons like the petitioners who are likely to be affected by such impugned action. Therefore, the impugned G.O. is in gross violation of principles of natural justice. The official respondents have not so far published the seniority list to the Inspector of Police and it is incumbent upon the respondents to publish a draft seniority list every year. It is also incumbent upon the respondents to invite objections from the members of service on such seniority list . All these things have not been done .

108. The grounds raised in other two writ petitions are also similar in line with the grounds as stated supra.

109. Though these writ petitions were filed in the month of June and July 2012, the Government has not chosen to file any counter affidavit and on the other hand, when the matter was taken up by us for final disposal, the learned Advocate General appearing for the State of Tamil Nadu submitted that the reasons stated in the impugned G.O. may be taken as the stand of the Government. However, after the arguments were almost over and when we were about to reserve the matters for judgment, an attempt was made by the Government to file a counter affidavit in these matters, which was strongly opposed by the learned counsels appearing for the writ petitioners. As the learned Advocate General had already submitted that the reasons stated in the impugned G.O. may be taken as the stand of the Government and in view of the fact that the said counter was sought to be filed at the fag end of the hearing, just few minutes before reserving the matters for orders, we thought fit not to entertain the counter affidavit and to proceed to decide the matter as such.

110. Mr.Radhakrishnan, learned counsel appearing for the petitioner in W.P.No.20728 of 2012 challenging G.O.Ms.No. 332 dated 3.5.2012 submitted as follows:-

(i) G.O.Ms.No.332 dated 03.5.2012 was passed in pursuant to the interim stay granted by this court in W.A.No. 849 to 854 of 2010 on 12.4.2012. Granting of interim stay does not mean that the judgment of the learned single Judge was set aside.

(ii) In
Shree Chamundi Mopeds Ltd., Vs. Church of South India Trust Association
((1992) 3 SCC 1, the Hon'ble Supreme Court considered the scope of granting interim stay and its effect on further proceedings. Going by
the said judgment
, the act of the Government in passing G.O.Ms.No.332 is per se contempt by their overreaching act.

(iii) The Government cannot take any different stand contrary to the stand already taken before the learned single Judge. No seniority was ever prepared by the Government and therefore clause 5(e) of G.O.Ms.No.1252 dated 29.10.2004 has no sense.

(iv) The impugned G.O.Ms.No.332, Home, dated 3.5.2012 has been issued by the State without affording an opportunity to the writ petitioners and hence the same is violative of
Articles 14
and
of the Constitution of India.

111. Mr. Singaravelan, learned counsel appearing for the writ petitioners in W.P.Nos. 17731 and 8911 of 2012 and some of the respondents in other writ appeals submitted as follows:-

(i) On 12.4.2012 interim stay was granted by the Hon'ble Division Bench in the writ appeals. Within a month G.O.Ms.No. 332 came to be passed on 3.5.2012 based on the said interim stay. However, the stay already granted was subsequently modified on 2.8.2012 as status quo. Therefore, G.O.Ms.No.332 has no legs to stand.

(ii) G.O.Ms.No. 1396 dated 3.10.2007 came to be passed based on Rule 35(aa) and therefore it is statutory in character and the same cannot be changed by a subsequent G.O.

(iii) The Government cannot change its policy.
In this respect the decision reported in ((2008) 1 SCC 747 (
R.K.Mobisana Singh Vs. KH.Temba Singh and Others
) was relied on to contend that promotion not made in accordance with Rules and consequently any period of service rendered therein cannot be counted for seniority.

The decision of the Apex Court reported in AIR 1978 SC 851 (
Mohinder Singh Gill and another Vs. The Chief Election Commissioner and others
) is relied on to contend that Government cannot improve their case by way of counter affidavit.

112. Per contra, the following are the submissions made by the learned Advocate General :-

(i) As the promotion granted to the appellants are not regular promotion but only by way of special promotion, Rule 35(aa) is not applicable to the facts and circumstances of the case and consequently by applying the said Rule 35(aa), the seniority granted to the appellants cannot be disturbed. Since G.O.Ms.No.1396 disturbed the seniority, Government issued G.O.Ms.No.332 restoring the original seniority to the accelerated promotees. G.O.Ms.No.332 dated 3.5.2012 was made in accordance with the Rules.

(ii) These writ petitions are liable to be dismissed, even on the preliminary ground viz., non-joinder of necessary parties, as the persons benefited by G.O.Ms.No.332 (accelerated promotees) were not made as party respondents in these writ petitions. In this respect, a decision reported in Manu /TN / 1291 2012 ( K.Vijayaraj and Others Vs. K.Kumaran and Others) passed by a Division Bench of this Court, and a decision reported in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others (1984 (4) SCC 251) are relied on.

(iii) With regard to the right and competency of the Government in issuing the impugned G.O., the Hon'ble Division Bench had stayed the order of the learned single Judge and therefore, the Government wanted to restore clause 5(e). The said action of the Government is a policy decision with which this Court cannot interfere. The substance of G.O. Ms.No. 332 is only to restore clause 5(e) and nothing else.

(iv) There is no similar rule as Rule 35(aa) in the Special Rules for Tamil Nadu Police Subordinate Services. Therefore, the Sub-Inspectors promoted to Inspectors are governed by Rule 25 only for which Rule 35(aa) cannot be applied. The learned single Judge applied Rule 35(aa) to all categories which is not correct.

113. In reply to the submissions made by the learned Advocate General, Mr.Radhakrishnan, learned counsel appearing for the petitioners submitted that preliminary objection regarding the maintainability of the writ petition cannot be raised orally without there being a pleading to that effect viz., a counter affidavit. Even then, such preliminary objection raised is not valid in view of the decision rendered by the Apex Court reported in AIR 1983 SC 769 (
A. Janardhana v. Union of India and Others
), as no seniority list is prepared for Sub-Inspectors in this case. Hence, there is no question of impleading any person as party respondents who are likely to be affected by quashing the impugned Government Order.

114. All the contentions of respective parties, with regard to grant of accelerated promotion and the consequential seniority have been considered by us, supra, while deciding the writ appeals and other connected writ petitions. Therefore, those findings hold good to these writ petitions also. Hence, we are not reiterating those findings once again. In these writ petitions, we are only deciding with regard to the propriety of the Government in passing G.O.Ms.No.332 during the pendency of the writ appeals.

115. On careful analysis of all these submissions and pleadings, following questions arise for consideration in these writ petitions:-

1.Whether the stay granted by the Division Bench empowers the Government to take a decision on the same subject matter independently ?

2.Whether the decision taken to cancel clause 5(e) in G.O.Ms.No.1396 dated 3.10.2007, the subject matter in writ appeals, is a proper action on the part of the Government and whether a dispute, which is subjudice, can be a subject matter of a Government Order taking a parallel decision independently ?

3.Whether the Government's action in cancelling clause 5(e) in G.O.Ms.No. 1396 dated 3.10.2007 , which was upheld by the learned single Judge and further being tested before the Division Bench, is in effect not as sitting over the judgment of the learned single Judge, especially under the circumstances where the Government had not chosen to challenge the same by filing any writ appeals ?

4.Whether the action of the Government in passing G.O. 332, in effect, is not nullifying the order of the learned single Judge, especially when the said action is not in the form of making or amending any legislation ?

5.Whether the writ petitions filed are liable to be rejected for non-joinder of necessary parties and whether such objection can be raised without there being a pleading to that effect ?

116. We have heard the learned counsel on either side , perused all the material documents placed before us and given a careful consideration to all the pleadings, submissions, case laws, facts and circumstances of the case.

117. Insofar as the challenge made against G.O.Ms.No.332 dated 3.5.2012 is concerned, no doubt the Government had referred to in the said G.O. that the same is passed subject to the disposal of W.A.Nos. 849 to 854 of 2010 pending before this Court. Though the said order came to be passed subject to the result of the writ appeals, the action taken in the said G.O., if perused in its entirety, would only show that the same was passed by giving a finality to the issue which is pending for consideration before this Court in writ appeals.

118. The writ appeals arise against an order passed by the learned single Judge in a batch of cases wherein G.O.Ms.No.1396 Home dated 3.10.2017 was upheld. In the said G.O. 1396, the Government deleted para 5(e) of G.O.Ms.No.1252 Home dated 29.10.2004 and G.O.Ms.No.1346 Home dated 6.12.2004 and substituted para 5(e) as extracted in Para Nos.(8) and (76) of this judgment. The said para 5(e) substituted in G.O.Ms.No. 1396 and upheld by the learned single Judge was cancelled through the impugned G.O.332 and consequently the original para 5(e) as stood in 2004 G.Os was restored. Thus, in effect, the entire subject matter of the writ appeals were dealt with by the Government in the impugned G.O. by taking a final decision. For such action, the Government took advantage of the interim stay granted by the Division Bench in the said writ appeals, on 12.4.2012 followed by the opinion rendered by the then learned Advocate General.

119. No doubt the Division Bench granted an interim order of stay on 12.4.2012 thereby staying the order passed by the learned single Judge. It is pertinent to note that the learned single Judge had only affirmed and upheld G.O.Ms.No. 1396 and therefore granting of interim stay by the Division Bench of the order passed by the learned single Judge cannot be taken to mean granting of interim stay of G.O.Ms.No. 1396. In any event, the fact remains that only an interim stay was granted and no finality had reached in the writ appeals. Therefore, the crucial question is as to whether the Government, under such circumstances, is justified in dealing with a matter which is sub-judiced?

120. We already pointed out that the action taken under impugned G.O. is a final decision taken on a matter which is pending before the Court. At this juncture, it is useful to refer the decision reported in 1992 (3) SCC 1 (
Shree Chamundi Mopeds Ltd., Vs. Church of South India Trust Association
(1992 (3) SCC 1 ) .

"10. ... ... ... While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of of the passing of the stay order and it does not mean that the said order has been wiped out from existence. "

121. Thus, in our considered view, the granting of stay in the writ appeals will not confer any right on the Government to proceed independently to decide the same issue which is directly the issue pending before the Court. Accordingly, we hold that the stay granted by the Division Bench, does not empower the Government to take a decision to pass the impugned G.O. independently.

122. When the impugned G.O. had directly dealt with the subject matter pending before the Division Bench and cancelled Para 5(e) and restored the original Para 5(e), such action is undoubtedly amounting to sitting over the judgment of the learned single Judge as well. It is relevant to note, at this juncture, that the Government has not chosen to file any writ appeal as against the order of the learned single Judge. Such action of indirectly nullifying the order of the learned single Judge cannot withstand the scrutiny of law, even though the same was made subject to the result of the writ appeals.

123. No doubt, the legislature has got enormous power to nullify a judgement by making a legislation or legislative amendments. Here, it is not the case of making any amendment to the legislation. The impugned G.O. is purely an executive order. Therefore, in our considered view, the impugned G.O. passed by the Government is undoubtedly an overreaching act which cannot be justified on any ground. Merely by stating that the G.O. was passed subject to the result of writ appeals will not make the said G.O. either valid or workable one.

124. Let us consider the question of maintainability of the writ petitions for non-joinder of necessary parties, as raised by the learned Advocate General.

125. The learned Advocate General relied on the decision of the Apex Court reported in
Prabodh Verma and Others Vs. State of Uttar Pradesh and Others
((1984) 4 SCC 251) and the decision of the Division Bench of this Court reported in Manu/TN /1291/2012 (
K.Vijayaraj and Others Vs. K.Kumaran and Others
) to contend that this Court cannot decide a writ petition under
Article 226
of the Constitution of India without the persons who would be vitally affected by its judgment being before it as respondents.

126. Per contra, Mr.Radhakrishnan, learned counsel relied on the decision in
A.Janardhana Vs. Union of India and others
(AIR 1983 SC 769) to contend that the relief is sought only against the State Government and not against any individual nor any seniority is claimed by anyone individual against another particular individual.

127. In all these writ petitions only the official respondents were made as parties and the other private persons originally arrayed as party respondents were given up by the learned counsel appearing for the respective petitioners at the time of hearing the writ petitions.

128. If these writ petitions were heard separately and independently without cross reference to the arguments advanced and heard by this court in the writ appeals and writ petitions in the same batch of cases, what the learned Advocate General submitted may be correct. But the fact remains that some of the affected persons are already before this Court in other writ appeals and writ petitions and all of them were heard together along with these writ petitions. Therefore, it cannot be said that affected persons were not before this Court and heard. When a matter is heard in a batch of cases, merely because the affected parties were not added in one or some of the matters, that itself will not defeat the said matter as not maintainable, when the affected parties are available and are being heard in the other connected cases in the same batch. Therefore, considering these facts we reject the submission made by the learned Advocate General with regard to the preliminary objection raised on the ground of non-joinder of necessary parties.

129. Further, it is to be seen that the Government has not filed the counter affidavit in these writ petitions. Thus, there is no pleading raised specifically questioning the maintainability of the writ petitions for non-joinder of necessary parties. Pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. [Vide Sri Mahant Govind Rao v. Sita Ram Kesho (1897-98) 25 IA 195 (PC);
Trojan & Co. v. Nagappa Chettiar
(AIR 1953 SC 235); Ishwar Dutt v. Collector (L.A) [(
2005) 7 SCC 190] and State of Maharashtra v. Hindustan Construction Co. Ltd.
[(2010) 4 SCC 518]. Hence, no contention could be advanced without pleadings.

130. The conduct of the Government in passing the impugned G.O. is also bad by applying the Rule of estoppel. The stand, which is now taken before us by the Government, is totally contra to the stand taken before the learned single Judge. Thus, it is crystal clear that the Government approbates and reprobates. This cannot be permitted by applying the doctrine of estoppel as well. It is useful to refer, at this juncture, the recent decision of the Apex Court reported in
Cauvery Coffee Traders Vs. Hornor Resources (Intern
.) Co. Ltd., (2012 (1) CTC 193) wherein the Apex Court at paragraphs 33 to 35 held as follows:-

"33.
In
R.N. Gosain v. Yashpal Dhir
, AIR 1993 SC 352, this Court has observed as under:
Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.

34. A party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. (Vide:
Nagubai Ammal & Ors. v. B. Shama Rao & Ors.
, AIR 1956 SC 593;
C.I.T. Vs. MR. P. Firm Maur
, AIR 1965 SC 1216;
Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati & Ors.
, AIR 1969 SC 329;
P.R.Deshpande v. Maruti Balaram Haibatti
, AIR 1998 SC 2979; Babu Ram v. Indrapal Singh, AIR 1998 SC 3021;
Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders & Contractors
, AIR 2004 SC 1330;
Ramesh Chandra Sankla & Ors. v. Vikram Cement & Ors.
, AIR 2009 SC 713; and
Pradeep Oil Corporation v. Municipal Corporation of Delhi & Anr.
, (2011) 5 SCC 270).

35. Thus, it is evident that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."

131. The same view was reiterated once again by the Apex Court in the latest decision reported in Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond and Gem Development Corporation Ltd., and another 2013 (2) MLJ 756 (SC).

132. Further, while considering the question of legislative competence, the Hon'ble Supreme Court in a decision reported in
A.Manjula Bhashini and others Vs. Managing Director ,Andhra Pradesh Woemen
's Cooperative Finance Corporation Limited and Another (2009) (8) SCC 431) at paragraphs 67 and 68 had held as follows:-

"67. The distinction between legislative and judicial functions is well known. Within the scope of its legislative competence and subject to other constitutional limitations, the power of the legislature to enact laws is plenary. In exercise of that power, the legislature can enact law prospectively as well retrospectively. The adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of that function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. If the court finds that the particular statute is ultra vires the power of legislature or any provision of the Constitution, then the same can be struck down.

68. It is also well settled that the legislature cannot by bare declaration, without anything more, directly overrule, reverse or override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by
Articles 245
and
of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based. "

133. Likewise, in another decision reported in Govt. of A.P and Others Vs.G.V.K.Girls High School (2000) (8) SCC 370), the Hon'ble Supreme Court at paragraph 30 held as follows:-

"30. Now Section 2 of Act 34 of 1995 also purports to nullify the effect of the judgment of the learned Single Judge. It is well settled that the legislature cannot overrule a judgment by passing a law to that effect unless it removes the basis of the legal rights upon which the judgment is based with retrospective effect and provided there is no violation of any constitutional provision in such withdrawal of rights retrospectively. "

134. A perusal of the above said decisions of the Apex Court would show that legislature cannot assume power of adjudicating a case by enactment of law, without leaving to the judiciary to decide the law in force. It is also observed therein that the legislature is also incompetent to over rule the decision of a Court without properly removing the base on which the judgment is founded. It is further observed that the legislature by a mere declaration without anything more cannot directly over rule, reverse or override a judicial decision. The legislature can render a judicial decision ineffective by enacting a valid law within its legislative field fundamentally altering or changing its character retrospectively. Thus, the power of legislature to enact the law is always there, only when such power is exercised as conferred upon it by
Articles 245
and
of the Constitution of India. But without resorting to make any such legislative exercise, the Government cannot overrule or nullify a decision of the Court by passing an executive order. If any such attempt is made it is nothing but an overreaching and incompetent action liable to be struck down at the threshold.

135. The Division Bench of our High Court, in a recent decision in the matter of Uniform System of School Education reported in 2011 (4) CTC 801 (
K.Shyam Sunder Vs. The State of Tamil Nadu
), while considering the issue with regard to the policy decision of Government, found the action of the Government as exceeding its power by bringing an Amendment Act especially when the validity of the parent Act was upheld by the earlier Division Bench and confirmed by the Hon'ble Supreme Court.

136. The above said order of the Division Bench was challenged before the Hon'ble Supreme Court.
In its decision reported in
State of Tamil Nadu and others Vs. K.Shyam Sunder and Others
((2011) 8 SCC 737), the Hon'ble Apex Court considered the said issue with regard to change of policy of the Government with the change of the Government, and held at paragraphs 31 to 35, as follows:-

" 31. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. "The principles of governance have to be tested on the touchstone of justice, equity, fair play and if a decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate. (Vide: Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc. etc., AIR 2003 SC 2562).

32.
In
State of Karnataka & Anr. v. All India Manufacturers Organisation & Ors.
, AIR 2006 SC 1846, this Court examined underwhat circumstances the government should revoke a decision taken by an earlier Government. The Court held that an instrumentality of the State cannot have a case to plead contrary from that of the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the government. The
Court further held
as under:-

"It is trite law that when one of the contracting parties is State within the meaning of
Article 12
of the Constitution, it does not cease to enjoy the character of "State" and, therefore, it is subjected to all the obligations that "State" has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional Courts." (Emphasis added)

33. While deciding the said case, reliance had been placed by the Court on its earlier judgments in
State of U.P. & Anr. v. Johri Mal
, AIR 2004 SC 3800; and
State of Haryana v. State of Punjab & Anr.
, AIR 2002 SC 685. In the former, this Court held that the panel of District Government Counsel should not be changed only on the ground that the panel had been prepared by the earlier Government. In the latter case, while dealing with the river water-sharing dispute between two States, the Court observed thus:

" in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."

34.
In
M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors.
, AIR 1999 SC 2468, while dealing with a similar issue, this Court held that Mahapalika being a continuing body can be estopped from changing its stand in a given case, but where, after holding enquiry, it came to the conclusion that action was not in conformity with law, there cannot be estoppel against the Mahapalika.

35. Thus, it is clear from the above, that unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest,
the State should not change its stand merely because the other political party has come into power. Political agenda of an individual or a political party should not be subversive of rule of law. (emphasis supplied)

137. There may be change of seat in power. But the Government does not change. Hence, the submission made earlier before the learned single Judge by supported pleadings, cannot be projected as invalid submissions or pleadings, especially when a decision came to be made based on those submissions and pleadings. Government cannot withdraw or alter those pleadings as they formed part of the court order. The present stand taken, just opposite to the earlier one cannot be justified under the guise of policy decision. A decision followed by action, tested before the Court, can never continue to be the policy matter of the Government. The Government cannot blow hot and cold before the Court in the same matter one at the stage of the writ petition and another at the stage of writ appeals. If that is permitted, the judicial process will find it difficult in rendering substantial justice to the party litigants. Needless to say that the Government is also a party litigant before the Court, no doubt a biggest litigant.

138. Without going into all these aspects, we could have set aside G.O.Ms.No. 332 dated 3.5.2012, by simply holding so in view of our findings and decision rendered in the above writ appeals. Yet, we would like to express our dismay and displeasure over the action of the Government in hurriedly passing G.O.Ms.No.332 without even waiting for the decision in the writ appeals. Therefore, we are of the view that in all fairness G.O.Ms.No.332 dated 3.5.2012 ought not to have been passed by the Government . Consequently, we have no hesitation in holding that G.O.Ms.No.332 dated 3.5.2012 is invalid and passed without any competency. Accordingly, the same is liable to be quashed.

139. Conclusion:-

W.A.Nos.849 to 854 and 2066 of 2010:

Accelerated promotion was without reference to the statutory rules or G.O.Ms.No.468, Home, dated 19.3.1996. The appellants and other police personnel were not promoted to the substantive posts but were accommodated by creation of supernumerary posts. Since there was ambiguity over panel position of the accelerated promotees vis-a-vis regular promotees, considering the representation given by the police officers, Government rightly issued G.O.Ms.No.1396 Home dated 3.10.2007 deleting paragraph No.5(e) in G.O.Ms.No.1252, Home, dated 29.10.2004 and G.O.Ms.No.1346, Home, dated 6.12.2004. Government was well within its powers in deleting Paragraph No.5(e) in G.O.Ms.No.1252, Home, dated 29.10.2004 and G.O.Ms.No.1346, Home, dated 6.12.2004 and clarifying the position by substituting a new one in G.O.Ms.No.1396, Home, dated 3.10.2007 restoring the original seniority. The learned single Judge rightly dismissed the Writ Petitions and we do not find any infirmity in the order of the learned single Judge warranting interference and all the Writ Appeals are dismissed. The order of status quo granted on 2.8.2012 is vacated.

Consequently, the Writ Petitions in W.P.Nos.25736 to 25741 of 2010 are dismissed.

140. W.P.Nos.17731, 20728 of 2012 and W.P.(MD) No.8911 of 2012: The impugned G.O.Ms.No.332 Home (Pol.1A) Department dated 03.5.2012 had directly dealt with the subject matter pending before the Division Bench sitting over the judgment of the learned single Judge. The grant of stay in Writ Appeals will not confer any right on the Government to pass the impugned G.O. Ms.No.332 Home (Pol.1A) Department dated 03.5.2012 independently and the impugned G.O.Ms.No.332 Home (Pol.1A) Department dated 03.5.2012 is quashed and all these Writ Petitions are allowed. No costs.

Consequently, connected Miscellaneous Petitions in all the Writ Appeals and in all the Writ Petitions shall stand dismissed.

usk/bbr

To

1. The Secretary to Government,
Home Department,
Secretariat, Chennai-9.

2. The Director General of Police,
Chennai 4