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Judgment
V. Dhanapalan, J.—Since the case of the petitioners in both the writ petitions is identical, these writ petitions are decided by this common
order.
2 The case of the petitioners, in brief, is as under:
Both the petitioners joined the Police Department as Constable in the year 1974 and were promoted in the year 1983 as Head Constable. While
the petitioner in W.P. 4902 of 2005 got temporary promotion as Sub-Inspector on 13.02.1986, the other petitioner got temporary promotion as
Sub-Inspector on 23.08.1988. Seeking regularisation of their services as Sub-Inspector, they had moved the Tamil Nadu Administrative Tribunal
which by its order dated 27.03.1998, had directed the respondent therein to regularise the services of the petitioners and to fix seniority as per the
rules. The Commissioner of Police, Chennai, by his order dated 11.12.1998, implemented the order of the Tribunal by placing the petitioners at
the bottom of the ""C"" List of the year 1994 and further directed them to undergo pre-promotional training. That apart, the petitioners were also
subject to three months practical training. On 01.02.2005, the Director General of Police had come out with a ''C"" List of Sub-Inspectors of
Police fit for promotion as Inspectors drawn for the year 2004-2005 in and by which even the names of the Sub-Inspectors who were direct
recruits in the year 1996 were included whereas the names of the petitioners were not included thereby denying them promotion to the post of
Inspector even for the year 2004-2005. Hence, the present writ petitions.
Mr. Ravi, learned Counsel for the petitioners, in nutshell, has contended since the petitioners have been working in the post of Sub-Inspector of
Police since 1986 and 1988 respectively, in other words to say for a period of nearly two decades and moreover, when the Sub-Inspectors of
Police appointed in 1997 have been considered for promotion as Inspectors of Police, it is not fair on the part of the respondent to have denied
promotion to the petitioners for the post of Inspector of Police.
The learned Counsel for the petitioner has brought to the notice of this Court that one Sub-Inspector of Police who was denied seniority due to
administrative fault in sending him for training belatedly, was subsequently promoted as Inspector vide G.O. (2D) No. 179, Home Department
dated 16.04.2004.
Mr. A. Edwin Prabakar, learned Additional Government Pleader has contended that when promotion test was conducted in 1985, the
petitioners were not possessing the sine qua non of 4 years experience as Head Constable since they were promoted only during 1983 and their
services as Sub-Inspector of Police have rightly been taken into account only from 14.02.1999 after their completing the requisite institutional and
practical training and this is in accordance with Rule 35(aa) of Special Rules for Tamil Nadu Police Subordinate Service. In support of his
contention that the period of temporary service prior to regularisation need not be counted for the purpose of promotion, the learned Additional
Government Pleader has relied on a judgment of the Supreme Court reported in K. Madalaimuthu and Another Vs. State of Tamil Nadu and
Others, (para 24)
On a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears
to be the one canvassed on behalf of the appellants. The decisions cited by Mr. Rao have been rendered in the context of Rule 10(1)(i)(1) and
other relevant rules which are also applicable to the facts of the instant case. Apart from the above, the law is well settled that initial appointment to
a post without recourse to the rules of recruitment is not an appointment to a service as contemplated under Rule 2(1) of the General Rules,
notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39(c) of the
General Rules indicates that a person temporarily promoted in terms of Rule 39(a) is required to be replaced as soon as possible by a member of
the service who is entitled to the promotion under the Rules. It stands to reason that a person who is appointed temporarily to discharge the
functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is
regularised. It, therefore, follows that it is only from the date on which his services are regularised that such appointee can count his seniority in the
cadre.
I have given careful consideration to the submissions made by Mr. S. Ravi, learned Counsel for the petitioner and Mr. A. Edwin Prabakar,
learned Additional Government Pleader appearing for the respondent.
It is not in dispute that the petitioners joined the services of the Police Department in the year 1974 as Constable and got promoted as Head
Constable in the year 1983. It is also not in dispute that while the petitioner in W.P. No. 4902 of 2005 got temporary promotion as Sub-Inspector
in 1986, the petitioner in W.P. No. 4902 of 2006 was temporarily promoted as Sub-Inspector in 1988. The main case of the petitioners, at the
cost of repetition, is that they have been serving for about two decades in the same post i.e. as Sub-Inspector and yet, have not been considered
for promotion even in the 2004-2005 batch whereas the names of Sub-Inspectors who were directly recruited in 1996 had been included in the
C"" List drawn for the year 2004-2005 for promotion to the post of Inspector.
The main reasonings given by the respondent in this regard are that: (i)when promotion tests were conducted in 1985, the petitioners had not put
in four years of service as Head Constable and; (ii) no promotion tests were able to be held between 1985 and 1996 due to administrative
exigencies.
As can be seen from the records, the Tribunal, on 27.03.1998 had directed the Department to regularise the services of the petitioners and to
fix their seniority as per rules within a period of six weeks from the date of receipt of order copy. Admittedly, the Commissioner of Police had
implemented the orders of the Tribunal only on 11.12.1998 and there is no justification given on the side of the respondent for the delay of about
nine months in carrying out the orders of the Tribunal. Furthermore, as already stated, the petitioners have been working in the Department for
about two decades sans promotion. In this regard, the reasoning given by the respondent that it was not possible to hold promotion test from 1986
to 1996 due to administrative exigencies cannot be a valid ground for denial of promotion to the petitioners. In this regard, it is worth referring to a
judgment of the Supreme Court reported in State of Maharashtra Vs. Jagannath Achyut Karandikar, (paras 10 & 11)
... If examination is not held in any year, Rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances. The person
who has not exhausted the available chances to appear in the examination cannot be denied of his seniority. It would be unjust, unreasonable and
arbitrary to penalise a person for the default of the government to hold the examination every year....
If the examination is not held in any year, the person who has not exhausted all the permissible chances has a right to have his case considered for
promotion even if he has completed nine years'' service. The government instead of promoting such persons in their turn made them to wait till they
passed the examination.... To remove the hardship caused to them the Government wisely restored their legitimate seniority in the promotional
cadre. There is, in our opinion, nothing improper or illegal in this action and indeed, it is in harmony with the object of the 1962 Rules.
From the above referred to judgment of the Supreme Court, it is made amply clear that the Government servants cannot be penalised on
account of any lapse on the part of the Government to comply with the formalities in regard to promotion of its employees. When the petitioners
have admittedly put in sufficient years of service as Sub-Inspectors and that too, with a clean track record, looked at from any angle, they certainly
deserve to be promoted to the post of Inspector. As for the judgment reported in K. Madalaimuthu and Another Vs. State of Tamil Nadu and
Others, relied on by the learned Additional Government Pleader, I am of the considered view that it cannot be made applicable to the facts of the
case on hand since admittedly, in the instant case, there is a clear lapse on the part of the Government in conducting test for promotion. Had the
promotional test been held at the appropriate time, the petitioners would have attended the same and would have been eligible for promotion even
in the year 1986, i.e. the year in which the Sub-Inspectors of Police who were directly recruited had been included in the ""C"" List drawn for the
year 2004-2005 for promotion to the post of Inspector. Reasonable promotional opportunities should be available in every wing of public service.
That generates efficiency in service and fosters appropriate attitude to grow for achieving excellence in service. In the absence of promotional
prospects, the service is bound to de-generate and stagnation kills the desire to serve properly. In addition, the Commissioner of Police has taken
a period of about nine months to implement the orders of the Tribunal as against the period of six weeks granted by the Tribunal. In view of these
reasons, I am of the view that ends of justice would not be met if the petitioners who had put in about two decades of service as Sub-Inspectors
and who are at the fag end of their service, are deprived of their legitimate promotion for no fault of them.
Considering the facts and circumstances of the case and the discussion made above, this Court directs the respondent to include the
petitioners'' name in the ""C"" List of Sub-Inspectors of Police fit for promotion as Inspectors of Police (Category-1) drawn for the year 2004-2005
in the appropriate place with due seniority and to promote them as Inspector of Police with effect from 01.02.2005. Since it is brought to my
notice that K. Earl, the petitioner in W.P. No. 4903 of 2005 is to be superannuated by this month end, as far as he is concerned, this direction is to
be complied with by the respondent before his super-annuation and in respect of the other petitioner, this order may be given effect to within a
period of four weeks from the date of receipt of a copy of this order.
With the above directions, the writ petitions stand allowed. No costs.