M. Joseph Sam vs The Director General of Police and The Commissioner of Police

S. Manikumar, J.—The petitioner has sought for a direction to respondents to consider the claim for inclusion of his name in the ''C'' list of

Head Constables fit for promotion as Sub-Inspector of Police (AR) of the year 1991-92 and promote him as Sub Inspector of Police (AR) on par

with that of his juniors, with all consequential service and monetary benefits.

It is the case of the petitioner that he was enlisted as Grade-II Police Constable on 14.8.1980 in Armed Reserve, Chennai. He was promoted

as Naik on out of seniority basis on 20.5.1985. Thereafter, he participated in the promotion Board Armed Reserve for the post of Lance Naik

during the year 1986 and his name was included in the ''C'' list of Armed Reserve. He was promoted as Lance Naik on 16.4.1986, by the

Commissioner of Police, Armed Reserve, Chennai.

About 80 persons included in the ''C'' lists were transferred to Taluk Police by the orders of the Deputy Commissioner of Police dated

28.8.1986. They were asked to vacate the quarters and on their protest, all of them were taken back to Armed Reserve retaining their original

seniority. The petitioner was retransferred to the Armed Reserve Police, Madras on 29.5.1987 and he was posted to 24th Platoon. In the

meanwhile, the Director General of Police, Madras, the first respondent, taking into consideration, the length of service on the basis of the inclusion

of their names in the ''C'' list drawn on 16.4.1986, promoted many of his juniors as Head Constables. The petitioner along with others moved the

Tamil Nadu Administrative Tribunal in O.A. No. 2457 of 1990, seeking for a direction to promote them as Head Constables by virtue of inclusion

of their names in the ''C'' list of 1986. The Tribunal by its order dated 12.10.1990, held that the petitioners therein were entitled for promotion and

consequently directed the Commissioner of Police, Chennai to promote them as Head Constables by virtue of their names being included in the

''C'' list of 1986 with all consequential benefits. Following the order of the Tribunal, the Commissioner of Police, Chennai, the second respondent,

by an order dated 19.12.90, promoted the petitioner as Head Constables on par with that of his juniors from 8.4.87, with necessary endorsement

made in the Service Book.

It is the further case of the petitioner that the Range Promotion Board was conducted in the year 1991-1992 for the post of Sub Inspector of

Police Armed Reserve from out of eligible Head Constables. Though the petitioner was eligible, he was not called upon to attend the Range

Promotion test. Since, the petitioner did not participate in the Range Promotion Board, he was not selected and included in the ''C'' list of Sub

Inspectors of Police for the year 1991-92. Being aggrieved by the denial to participate in the Range Promotion Board, the petitioner made several

representations to the authorities, for which there was no response. Therefore, the petitioner is constrained to file the present Original Application,

which has been subsequently transferred to this Court and renumbered as the present Writ Petition.

In support of the relief prayed for in the Writ Petition, Mr. K.Venkatramani, Learned Senior Counsel submitted that the petitioner was

promoted retrospectively with effect from 8.4.87 with seniority, and therefore he should have been deemed to have completed four years of

service as Head Constable and in which case, he was eligible and should have been allowed to participate in the Range Promotion Board

conducted in December 1991. For the fault of the respondents, the petitioner cannot be denied of his chance for consideration to the post of Sub

Inspector of Police. As many juniors have been promoted to the post of Sub-Inspectors of Police, there is a violation of Article 14 of the

Constitution of India.

Learned Senior counsel for the petitioner further submitted that having granted promotion to the petitioner retrospectively from 8.4.1987 and

accordingly fixed the selection grade scale of pay in the year 1997, i.e. for 10 years of satisfactory service in the post of Head Constable, the

respondents ought not to have denied him a chance to appear before the Range Promotion Board conducted in the year 1991 for inclusion of his

name in the ''C'' list for promotion as Sub Inspector of Police, Armed Reserve.

Placing reliance on the unreported judgement in O.A. No. 2826 of 1999, dated 20.10.2001 and a decision of the Division Bench of this Court

in W.P. No. 16949 of 2004 dated 12.10.2006, learned Senior Counsel submitted that all those persons who were similarly placed in O.A. Nos.

2453 to 2457 of 1990, dated 12.10.1990 were directed to be included in the ''C'' list dated 31.12.1998 for promotion to the post of Sub

Inspector of Police (AR) on par with that of their juniors with all consequential benefits and therefore, the petitioner is entitled to the benefits of the

judgements. For the above said reasons, he prayed that a direction may be issued to the respondents to consider the case of the petitioner for

inclusion of his name in the panel of Head Constables fit for promotion as Sub Inspector of Police (AR) and promote him to the said post.

Reiterating the averments made in the counter affidavit, Mr. S.Gopinathan, learned Additional Government Pleader appearing for the

respondents submitted that as per the directions of the Tribunal, the petitioner was promoted as Head Constable with effect from 8.4.87 on par

with that of his juniors, and subsequently, the Range promotion Board for Sub Inspector of Police was conducted in the year 1991-1992. Though

the petitioner was found eligible and qualified to participate in the promotion Board, he was not called upon to attend the test, since he was only a

probationer in the post of Head Constable.

According to him, though the petitioner was promoted as Head Constable with effect from 1987 on par with that of his juniors, he reported for

duty in the promotional post only on 3.1.1991 and that the actual performance of the employee for a period of two years within a continuous

period of three years in the post alone would be taken into account for completion of probation. As he was a Head Constable on probation, at the

time of the Range Promotion Board, he was not eligible to participate in the Promotion Board. For the above said reasons, he prayed for dismissal

of the Writ Petition.

Heard the learned Counsel appearing for the parties and perused the materials available on record.

Perusal of the order in O.A. Nos. 2453 to 2457 of 1990, dated 12.10.1990, shows that the petitioner along with four others filed the above

Original Applications for a direction to the respondents therein to promote them as Head Constables from the date on which their immediate

juniors were promoted. The Tribunal by its order dated 12.10.1990, held that the petitioners therein were entitled to retain their seniority in their

parent Unit, while they were on deputation. It further held that the mere fact they were on deputation, cannot take away their right for consideration

for promotion in their parent unit particularly when they were included in the ''C'' list drawn on 16.4.1986. In the result, the Tribunal held that the

petitioners therein were entitled for such promotion and directed that the respondents to consider the claims of all the petitioners for promotion as

Head Constables by virtue of their inclusion in the ''C'' list for the year 1986 and promote them from the date when their juniors came to be

promoted, and extend them all the consequential benefits including backwages.

One of the petitioners therein namely, Mr. K.Radhakrishnan, (Applicant in O.A. No. 2354 of 1990), denied the inclusion of his name in the

''C'' list for promotion as Sub Inspector of Police of the year 1991-92 has filed O.A. No. 2826 of 1999 and sought for a direction to include his

name in the said ''C'' list and promote him as Sub Inspector of Police. The objections raised by the department in O.A. No. 2826 of 1999 dated

28.10.2001 are extracted hereunder.

It is submitted that in the meantime, LNKS whose names were in the ''C'' list drawn in the year 1986 (including those who were not willing to taluk

Police) were promoted as Gr.I.P.C./H.C. At that time, the name of the applicant was not considered, since his lien was transferred from Armed

Reserve to taluk police. As a result of this, the applicant Head Constable moved to Hon''ble Tribunal, praying promotion as HC on par with his

junior. The Hon''ble Tamil Nadu Administrative Tribunal had also passed orders in favour of the applicant in O.A. Nos. 2454 to 2457/90 as his

name was included already in the ''C'' list of 1986. Accordingly, he was promoted as HC by the second respondent in his order No. 4825/90, dt.

19.12.98 with effect from 8.4.87. The applicant had reported for duty on promotion as HC only on 4.1.91. Subsequently, the test for promotion

as Sub Inspector of Police was held for the year 1991-92 during the month of September 1991. The Director General of Police, while conducting

Promotion Board, had put a condition strictly in his Memo. No. 36132/NGB I(5)/91, dated 1.10.91 that only approved probationers are eligible

to sit for promotion test. Unfortunately the applicant Head Constable was a probationer then in the post of Head Constable at that time, and hence

he was not allowed to participate in the test in pursuance of the Director General of Police''s order. Now, after the lapse of 9 years, the applicant

Head Constable had filed this Original Application praying promotion as sub Inspector of Police on par with his junior.

Two reasons are given for not permitting the applicant to participate in the Range Promotion Board. The first one is that the applicant has been

given promotion as Head Constable by order dated 19.12.199, and only on 4.1.1991, he joined and reported for duty as Head Constable. The

second reason is that there is a delay of 9 years incoming to this Tribunal.

However, after considering the rival submissions, the Tribunal by its order dated 28.10.2001,at paragraph Nos. 8 and 9 held as follows:

When promotion was not given in the cadre and when the concerned aggrieved person succeeds by moving the Tribunal or Courts and obtains

an order for retrospective promotion from a particular date, it must be construed that for further promotion, his service in that particular cadre

should be taken from the retrospective date though he has not rendered service from that date, because the service in the particular cadre could

not be rendered for no fault of him, but for the fault of the authorities concerned.

For the foregoing reasons, I am of the view that the applicant is entitled to succeed. The applicant has stated in his representation and the

original application that he should be given promotion by including his name in the ''C'' list dated 31.12.1991in R.C. No.

Estt.1(2)/1516/170124/91, of the Commissioner of Police, Chennai, which contains 27 names. The applicant''s name shall be included as Sl. No.

28, and notional promotion should be given to him from the date on which his promotion was given to one Elumalai shown as Sl. No. 27 in the said

list. However, it is made clear that the notional promotion given shall be reckoned only for the purpose of seniority and for further promotion. The

applicant will not be entitled to any monetary benefits. The Original Application is ordered accordingly.

Therefore, other petitioners, who were similarly placed Mr. A.Ramakrishnan, Mr. M.Damodaran and Mr. P.Raj also filed O.A. No. 2035,

2037 of 1999 and 4855 of 2000 and sought for inclusion of their names in the ''C'' list and promote them as Sub Inspector of Police in the

selection for the year 1991. But the Tribunal by its order dated 25.2.2004, by rejecting the case of the petitioners. However, the order made in

O.A. Nos. 2035 of 1999 etc. was challenged in this Court in W.P. No. 16937 to 16939 of 2004. While setting aside the orders, the Division

Bench of this Court by its order dated 12.10.2006 at Paragraph Nos. 5 and 6 held as follows:

This Court carefully considered the arguments of both sides and also perused the material records placed. The Original Applications filed by the

petitioners and two other persons in O.A. Nos. 2453 to 2457 of 1990 seeking promotion as Head Constables with retrospective effect was

allowed on 12.10.90 directing the second respondent to promote them as Head Constables with effect from 8.4.97. The said order reached

finality, since the first and second respondents have not chosen to challenge the said order. In view of the said order, the petitioners are deemed to

have completed the probation on 8.4.90. The subsequent Board for promotion to the post of Sub Inspector of Police was convened only in the

year 1991. Hence the names of the petitioners should have been considered by the first and second respondents, but they failed to do so. The said

fact was not considered by the Tribunal. It is also brought to the notice of this Court that one Radhakrishnan, who was similarly placed and also

one of the applicants to the order dated 12.10.90 of the Tribunal had also filed O.A. No. 2826 of 1999 seeking promotion as Sub-Inspector of

Police on par with his juniors with all consequential monetary benefits. That application was allowed directing the first and second respondents to

include his name in Sl. No. 28 and ordered to give national promotion, but without any monetary benefits. According to the learned Counsel for

the petitioners, the said order was implemented by the first and second respondents without any protest. The Tribunal failed too consider the

above said facts while dismissing O.a. Nos. 2035, 2037of 1999 and 4355of 2000 filed by the petitioners on the ground that the Sub Inspector of

Police post is a selection post and therefore there is no possibility of granting a deemed selection. It is also not in dispute that the petitioners herein

appeared in subsequent Board for Sub-Inspector selection and got selected.

As mentioned above, the earlier order passed in O.A. Nos. 2453 to 2457 of 1990 reached finality. If the said order had been implemented

fully, the names of the petitioners ought to have been considered in the 1991 Board itself. The above said facts were not considered by the

Tribunal. In view of the aforesaid discussion, the order of the Tribunal in respect of the Writ petitioners is set aside and the writ petitions are

allowed as prayed for. The first and second respondents are directed to give promotion to the petitioners as Sub-Inspectors of Police from the

date on which promotions were given to their juniors, however, the notional promotion given shall be reckoned only for the purpose of seniority

and for further promotion and the petitioners are not entitled to any monetary benefits. The respondents 1 and 2 are directed to implement this

order within a period of 12 weeks from the date of receipt of a copy of the same. No costs.

Perusal of the orders made in O.A. Nos. 2826 of 1999, dated 28.10.2001 shows that the objection of the respondents therein was based on

the proceedings of the Director General of Police, Madras dated 1.10.1991 by which only approved probationers were eligible to sit for the

promotion test. By observing that the order in O.A. Nos. 2453 to 2457 of 1990 had reached finality and implemented fully. But the said

contention had already been repelled by the Tribunal, in its order dated 28.10.2001 made in O.A. No. 2826 of 1999.

The Division Bench has directed the respondents 1 and 2 to give promotion to the petitioners as Sub-Inspectors of Police from the date on

which their juniors were given promotion, but denied monetary benefits.

The counter affidavit filed in July 1999 is without reference to the subsequent decisions of the Tribunal made in O.A. No. 2826 of 1999, dated

28.10.2001. The Division Bench of this Court in W.P. No. 16937 to 16939 of 2004, dated 12.10.2006 is squarely applicable to the facts of the

case.

In such circumstances, a direction is issued to the respondents 1 and 2, herein to include the name of the petitioner in ''C'' list dated

31.12.1991 in Rc. No. Estt.1(2)/1516/17G-4/91, issued by the Commissioner of Police, Chennai and that the petitioner shall be placed at the

appropriate position with his due seniority. The respondents are directed to give notional promotion, from the date, on which his juniors were

promoted. However, it is made clear that the notional promotion and the consequential fixation of salary can be made applicable only for posting

and for retiral benefits and not backwages.

For the above said reasons, the Writ Petition is allowed as indicated above. No costs.