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Judgment
Pending writ petition, the writ petitioner had an interim order in his favour in W.P.M.P. No. 18390/2004, which was an ex parte order. The said
order came to be vacated at the instance of the Government, which filed W.V.M.P. No. 1475/2004. The writ appeal is directed against that
order. The Hon''ble First Bench on 15.02.2005 directed the writ appeal to be posted along with the writ petition. That is how the writ appeal and
the writ petition are before us.
The writ appeal stands admitted. With the consent of the learned counsel on either side, the writ appeal and the writ petition are taken up for
final disposal. The writ petitioner, who was working as a Head Constable, was promoted temporarily on 05.12.1997 to the post of Sub-Inspector
of Police (Armed Reserve), which post he was holding till 06.05.2004. It appears that during that period of his temporary office, three proceedings
were initiated against him, which ended in awarding black marks in case of two misconducts and stoppage of increment for a period of two years
without cumulative effect in respect of the third misconduct. Relying upon the very same misconduct, the second respondent by proceedings dated
06.05.2004 reduced the rank of the writ petitioner from the post of temporary Sub-Inspector of Police (Armed Reserve) to his original post
namely, Head Constable. This was followed by the consequential order dated 12.05.2004 passed by the third respondent. As already stated, the
reduction in rank is the subject matter of challenge in the writ petition. Rule 3(b)(i) of the Tamil Nadu Police Subordinate Services (Discipline and
Appeal) Rules, 1955, mandatorily provides that ""before ever a punishment of reduction in rank is imposed, it shall be so done only after the
grounds on which it is proposed to take such action stand reduced to the form of a definite charge or charges; communication of the same to the
persons charged together with a statement of allegations on which each charge is framed and of any other circumstances which it is proposed to
take into consideration in passing orders on the case"". The procedure to be followed thereafter is also prescribed namely, oral enquiry. In this case
admittedly the order impugned in the writ petition had come to be passed in total violation of Rule 3(b)(i) of the Rules referred to above namely, no
charges were framed and no oral enquiry was conducted.
Mr. R. Vijayakumar learned Government Advocate defending the action of the Government would submit the following points:
The writ petitioner was only a temporary Sub-Inspector of Police in the Armed Reserve and therefore he does not get the protection provided
under Rule 3(b)(i) of the Rules. Secondly, there is an alternative remedy available to him.
On going through the relevant Rule as referred to above, we do not find that the said Rule makes any distinction between a person on temporary
promotion and a person on regular promotion. In other words, Rule 3(b)(i) of the Rules referred to above would stand attracted to both the cases
where the Disciplinary Authority is intending to impose a punishment of reduction in rank. The availability of an alternative remedy also would not
come in favour of the State, since the order challenged in the writ petition is without jurisdiction. Admittedly, in this case the impugned order had
come to be passed in total violation of Rule 3(b)(i) of the Rules referred to above. Learned Government Advocate would then rely upon Rule
15(a) of the Special Rules of Tamil Nadu Police Subordinate Service Rules, which is extracted hereunder:
Where general educational qualifications, special qualifications or special tests are prescribed for any class, category, grade or post which are not
prescribed for a class, category or grade carrying a lower rate of pay and no member in the category or grade carrying the lower rate of pay is
eligible for promotion to such category, grade or post, a member in such lower category or grade may be promoted to the category or grade
carrying the higher rate of pay temporarily. Every member who does not possess the prescribed qualifications and who has been or is temporarily
promoted shall be replaced as soon as possible by promoting a person possessing the prescribed qualifications. A member temporarily promoted
shall, whether or not he possesses the qualifications prescribed for class, category, grade or post to which he is promoted be replaced as soon as
possible by a member who is entitled to promotion under these rules. A member temporarily promoted under these rules, shall not, by reason only
of such promotion regarded as a probationer in the category or grade to which he has been promoted or be entitled to any preferential claim to
future promotion. The services of a member promoted under this sub-rule shall be liable to be terminated by the appointing authority at any time
without notice and without any reason being assigned.
We carefully went through the above Rule. In our considered opinion, it would get attracted only to a case of temporarily promoting a person
without the prescribed qualification from a lower category to a higher category, when there are no qualified hands in the lower category. As soon
as a suitable candidate in the lower category is available, the stop gap arrangement made by promoting a person in the lower category temporarily
to the higher category can be recalled without notice and without any reason being assigned. In other words, the promotion in such cases is due to
administrative exigencies and therefore recalling the promotion order would be only a consequential order. But in this case, it is not the case of the
Government that the promotion of the writ petitioner to the post of temporary Sub-Inspector of Police (Armed Reserve) is on the basis of Rule
15(a) of the Rules referred to above. Under such circumstances, we have no doubt at all that Rule 15(a) of the said Rules would not get attracted
to the case on hand. Admittedly, in this case the reduction in rank is by way of punishment and Rule 3(b)(i) of the Tamil Nadu Police Subordinate
Services (Discipline and Appeal) Rules should be strictly followed and since it has not been followed, the order challenged in the writ petition is
liable to be set aside and accordingly it is set aside. The writ petition is allowed and there will be no order as to costs. In view of the disposal of the
writ petition, nothing survives in the writ appeal and it is disposed of accordingly. Consequently, W.P.M.P.No.18390/2004 is closed.