S. Narayanan vs The Director General of Police, The Deputy Inspector General of Police, Tirunelveli Range and The Superintendent of Police

G. Rajasuria, J.—The prayers in this Writ petition is for the issuance of a Writ of Mandamus to direct the respondents to promote the

petitioner as Sub Inspector of Police and extent all benefits to him with retrospective effect.

Heard both sides.

The facts in nutshell which are absolutely necessary and germane for the disposal of this writ petitions would run thus:

Admittedly, the petitioner viz., S. Narayanan, is working as Head Constable in the Tamil Nadu Police Service, Tuticorin District. His grievance is

that even though during the year 2005, twelve posts of Sub Inspector of Police, fell vacant for being filled up, the petitioner''s name was not even

included in the ''C'' list by the Superintendent of Police and he was not also given any opportunity to participate in the examination for promotion to

the post of Sub Inspector of Police and accordingly he prays for issuance of direction to the respondent police authorities to promote him as Sub

Inspector of Police.

Per contra, the third respondent, viz., the Superintendent of Police, Thoothukudi District filed the counter affidavit denying and refuting the

allegations. The gist and kernel of the counter affidavit is that even though two opportunities were given to the petitioner for appearing in the written

test, which was held on 07.02.2005 and 20.03.2005, yet he did not avail the opportunity. For the first test, he did not offer himself as a candidate

even though his colleagues offered themselves as candidates and participated in the test. Relating to his representation, he was given opportunity

specifically to appear for the second test held on 20.03.2005 but he was in the hospital as an inpatient and he got himself discharged only on

21.03.2005, so to say, after the examination was over. Accordingly, the petitioner tried his level best to shy away from the examinations, however

he is bent upon getting promotion straight away.

Heard both sides.

The learned Counsel for the petitioner would reiterate the grounds as found set out in the writ petition and further develop his arguments to the

effect that the Superintendent of Police, under whom he was worked should have prepared ''C'' list; in that his name ought to have been included;

consequently he should have been asked to participate in the then test which was scheduled to be held on 07.02.2005; but that was not done and

thereby the petitioner was deprived of his opportunity to participate in the examination and get himself selected for the promotion post of Sub

Inspector of Police.

The learned Counsel for the petitioner also would highlight that since the petitioner was in the hospital, he was not in a position to appear for the

second test. He would highlight that now no test is prescribed for the promotion to the post of Sub Inspector of Police. Placing reliance on the

Government Order No. 986 dated 02.05.1988 he would develop his arguments to the effect that one T. Nesamani, Grade II Police Constable

was promoted as Sub Inspector of Police straight away without conducting any test for him.

Similarly, as revealed by the Tamil Nadu Administrative Tribunal order dated 12.04.1991 in O.A. No. 3830 of 1990, one N. Ramasamy was

straight away promoted as Sub Inspector of Police.

The point for consideration is as to whether the petitioner is entitled to get himself promoted as Sub Inspector of Police without undergoing the

Range Promotion Test in view of the reasons stated by him in his affidavit accompanying the writ petition?

On point:

Even though, the learned Counsel for the petitioner now would submit that as on date there is no Range Promotion Test for the post of Sub

Inspector of Police, yet it has to be seen that as on the date of the petitioner filing the writ petition and also expressing his grievances that he lost

opportunity of getting promoted during the year 2005, the position was that a Head Constable should pass Range Promotion Test to get himself

promoted to the post of Sub Inspector of Police. The famous adage ""he who seeks equality must do equality and he who comes to equality must

come with clean hands.

The petitioner cannot be heard to contend that justice should be rendered to him but he would not undergo the condition requisite for getting

justice at the hands of the police Department. No doubt, at the first instance his grievance was that his name was not included in the ''C'' list and

that thereby he was deprived of the opportunity to participate in the Range Promotion Test itself, which was held on 07.02.2005. Subsequently,

there were some correspondences between him and the police higher authorities and they gave him opportunity to participate in the Range

Promotion Test scheduled to be held on 20.03.2005. According to the petitioner, because of his illness, he could not appear for the test. In such a

case, the petitioner cannot blame anyone.

In the counter affidavit, the police authorities have come forward with the specific case that he got himself hospitalized during the second test

and came out of the hospital only on 21.03.2005 at 19.00 hours.

Be that as it may, in this factual matrix there is no point in going on probing into those past events. But one fact is clear the petitioner could be

promoted as Sub Inspector of Police for the old vacancy provided he passes the test concerned irrespective of the fact whether at present such

test is compulsory or not. It is a trite proposition of law that one cannot approbate and reprobate. The rules are when prevailing at the time of arisal

of vacancy cannot be bye passed. If he wants promotion, for the old vacancy he must be ready to participate in the Range Promotion Test whether

it is now in vogue or not and get himself qualified and project himself before his superior that he has become qualified to be appointed as Sub

Inspector of Police. Hence, in these circumstances, I am of the considered view that the writ petition could be ordered as under:

The respondent police authorities shall give him opportunity to appear for Range Promotion Test along with others, if any, and if he comes out

successful, he may be considered for filling up the existing old vacancy in the post of Sub Inspector of Police. The entire process shall be

completed within a period of six months.

With the above observations, this writ petition is disposed of. No costs.