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Judgment
Vinod K. Sharma, J.—The Petitioner seeks a writ, in the nature of certiorari, to quash the order, dated 09.07.2005, "declaring the Petitioner to be ineligible for drill test", on the basis of the written test performance, with consequential relief to set aside promotion of the 3rd Respondent, to the post of Sub Inspector of Police (Armourer).
The pleaded case of the Petitioner is, that he was appointed as ''Police Head Constable (Grade-II)'' in the Armed Reserve Force, Madurai City, on 14.08.1975. On completion Armourer basis course, he was promoted as ''Head Constable-I (Armourer), on 27.04.1988 and Head Constable (Armourer) on 19.08.1994.
On completion of tenure of service as Head Constable, the Petitioner was placed in Selection Grade, in the category of Head Constable with effect from 18.08.2004 and is working as such, since then.
The Armourer Wing of the Police, is a separate wing, of the Armed Reserve Force. The sanctioned strength of the Armourer Wing in Madurai City, is as under:
Sub Inspector of Police - 1 Head Constable -1 Grade - I/N/K/-2 Grade-II Police-2
The next channel of promotion of Head Constable is to the post of Sub Inspector of Police. In exercise of the powers, conferred by Section 8 and 10 of the Tamil Nadu District Police Act 1859, and Sections 9 and 11 of the Chennai City Police, Act 1888 (Tamil Nadu Act III of 1888) read with proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu framed the following rules effective from 24th May 1983:
NOTIFICATION
"In exercise of the powers conferred by Section 8 and 10 of the Tamil Nadu District Police Act, 1859 (Central Act XXIV of 1859) and Sections 9 and 11 of the Chennai City Police Act, 1888 (Tamil Nadu Act III of 1888) read with proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following rules:
The rules hereby made shall be deemed to have come into force on the 24th May, 1983.
RULES
The General and Special Rules applicable to the holders of permanent posts in the Tamil Nadu Police Sub-ordinate Service shall apply to the holders of the post of Sub-Inspector of Police (Armourer) subject to the modifications specified in the following rules:
Constitution:- The post shall constitute a distinct category in the said Class of the said service.
Appointment:- Appointment to the post shall be made by promotion from among the holders of the post of Reserved Head Constable (Armourer).
Appointing Authority:- The appointing authority for the post shall be as follows:-
(a)Chennai City: The Joint Commissioner of Police.
(b)Madurai, Coimbatore Salem, Tiruchirappalli and Tirunelveli Cities: The Commissioners of Police concerned.
(c)District: The Deputy Inspector General of Police of the range concerned
Qualifications:
(a) Must have a good working knowledge of English; (b) Must not have completed 53 years of age on the first day of July of the year in which the selection for promotion from the category of Headquarters(Armourer) is held:
(c)Must have completed a total service of seven years and must have served as Head Constable (Armourer) whether permanent or officiating for a period of not less than four years on the date of commencement of training.
Probation:-Every person appointed to the post shall, from the date on which he joins duty, be on probation for a total period of one year on duy within continuous period of two years.
Scale of pay:-The holders of the post shall be paid a monthly pay calculated in the revised scale of pay at Rs. 5300-150-8300.
Disciplinary authority:-As applicable to the members of the Tamil Nadu Police Subordinate Service (Discipline & Appeal)Rules.
NARESH GUPTA
SECRETARY TO GOVERNMENT
To
The Director-General of Police, Chennai-4
While considering the case of appointment by promotion of Head Constable to the post of Sub Inspector, the Government issued administrative instructions, dated 11.05.2005, which reads as under:
MOST IMMEDIATE/FOR PERSONAL ATTENTION
Rc. No. 217343/NGB/V(2)/2003 Office of the Director General of Police, Chennai 600 004.
Dated;11.05.2005
MEMORANDUM
Sub: Police -Armed Reserve - Sanction of (Armourer) posts to certain units - Redeployment of posts of S.I., HCs and PCs from A.R. to (Armourer) Wing -Filling up of vacancies of S.Is. - Regarding.
Ref: Proceedings of the Director General of Police Chennai-4, in Rc. No. 12284/R.A.III(2)/2005, dated
***
28.04.2005.
The attention of Range DIGs/COPs shown in the address column is drawn to the proceedings cited wherein orders have been issued for the redeployment of posts of SIs (Armourer) HCs (Armourer) & PCs (Armourer). The DIGs/COPs concerned will take necessary action to fill up the posts of HCs(Armourer) and PCs (Armourer) with in the respective Districts/Cities as per rules. With regard to filling up of SIs (Armourer) the Range DIGs/COPs, concerned are requested to convene Range Promotion Board and draw the ''C'' list of HCs (Armourer) fit for promotion as SIs (Armourer) for 2005. In this connection the following instructions are issued:
The following is the pattern of examination for conducting Range Promotion Board for the post of Sub-Inspector of Police (Armourer).
Marks
Viva-voce turn out and Drill 10 2. Written Test 50 3. Practical Test 40
Viva-voce turn out and Drill:
A.General Administration of the Police B.Physcial Fitness. C.General Commands for the parade.
Written Test
A.General Definition of Small ArMs. B.Maintenance of (Armourer) Workshop. C.Weapon repair and maintenance. D.Duties while on firing practices. E.Records Maintenance.
Practical Test
A.Stripping and assembling B.Woodwork C.Inspection and examination with Gauges. D.Light repairs.
Promotion Board has to be conducted for the following No. of Posts of S.I(Armourer)
Chennai City (Erstwhile Chengai East District 01 2. Salem City 01 3. Coimbatore City 01 4. Trichy City 01 5. Madurai City 01 6. Kancheepuram Range 02 7. Trichy Range 03 8. Thanjavur Range 03 9. Salem Range 01 10. Coimbatore Range 03 11. Madurai Range 02 12. Dindigul Range 01 13. Ramnad Range 02 14. Tirunelveli Range 01
Total 23
The Range DIGs/COPs are requested to conduct promotion Board following the instructions and guidelines enclosed herewith. They will also follow the Adhoc Rules framed in G.O.(Ms) No. 701, Home (Pol.III) Department, dated 09.08.02 (copy enclosed).
The programme for conducting of promotion tests and drawal of "C" list will be as follows:
Publication of list of eligible candidates 01.07.2005 Written Test at Range Headquarters 09.07.2005 (Saturday)
Drill Test at Range Headquarters 14.07.2005 Viva-voce at Range Headquarters 16.07.2005 (Saturday)
Practical Test (to be conducted by I.G.A.P., Trichy) 23.07.2005 (Saturday)
Publication of list of candidates selected for promotion as S.Is. (Armourer) 01.08.2005
The Range Deputy Inspectors General of Police/Commissioners of Police shall furnish the number of question papers required by them by Special messenger to reach Director-General of Police, Training positively on or before 25.06.2005. The required number of question papers will be arranged to be delivered to the Range Deputy Inspectors General of Police/Commissioners of Police concerned well in time for the written test by the Director-General of Police, Training, Chennai.
Director General of Police, Training, is requested to prepare the question paper and arrange to deliver them to the Deputy Inspectors General of Police/Commissioners of Police concerned.
Inspector General of Police, Armed Police, Trichy, is requested to conduct practical test and send compliance report to Chief Office. The Range Deputy Inspectors General of Police/Commissioners of Police will depute the eligible HCs (Armourer) to report before I.G.P.,A.P, Trichy on 22.07.2005 F.N. for practical test to be conducted by I.G.P., A.P., Trichy on 23.07.2005.
The Deputy Inspectors General of Police/Commissioners of Police, concerned will publish the ''C'' list of HC (Amourer) fit for promotion as Sub-Inspector of Police on 01.08.2005 and issue promotion orders on the same day i.e. 01.08.2005.
The Deputy Inspectors General of Police/Commissioners of Police, concerned will send proposal for declaration of "B"list to Chief Office.
The entire process should be done properly and if any clarification is needed on this, Chief Office may be contacted then and there through Micro-wave Phone 615 to complete the selection process as per schedule.
The receipt of this memorandum should be acknowledged immediately.
Encl:1. Guidelines 2. G.O.
Sd/-Letika Saran for Director-General of Police
To,
The Commissioners of Police, Chennai, Salem, Coimbatore & Trichy Cities.
The Deputy Inspectors General of Police, Kancheepuram, Coimbatore, Trichy, Thanjavur, Madurai, Ramanadhapuram, Dindigul, Salem and Tirunelveli Ranges.
All Zone Inspectors General of Police. The Director-General of Police, Training, Chennai The Inspector General of Police, Armed Police, Trichy.
Copy to:The Deputy Inspector General of Police, Railway Police, Chennai. Copy to:All other unit officers. Copy to:Deputy Inspector General of Police, Armed Police, Chennai. Copy to:Staff-I and II Sections, Chief Office Copy to:File.
/True Copy/Forwarded/By Order/
The Petitioner in pursuance to the circular, took part in the selection process, for appointment to the post of Sub Inspector, but was declared unsuccessful in the written test, for being sent to drill test.
Whereas, in pursuance to the performance of the Respondent No. 3 in the written test, as also in the drill test, he was ordered to be appointed by promotion as ''Sub Inspector of Police.''
The order of appointment of the Respondent No. 3, has been challenged by the Petitioner on the ground that it was not permissible for the Respondents to issue circular letter, dated 11.03.2005, contrary to the statutory rules.
In support of this contention, the learned Counsel for the Petitioner, placed reliance on the judgment of this Court, in the case of K.Sampath v. The State of Tamil Nadu and Ors., 2007 Writ L.R. 5 2 1, wherein, it was held by this Court, that the order under challenge in the said case, was totally illegal, as the Government Order, issued in exercise of legislative power, could not be clarified, by a letter of the Secretary to the Government, issued on administrative side.
The learned Counsel for the Petitioner also contended, that circular letter was not followed prior to 2005 or thereafter.
This contention is misconceived, as the circular could not have been followed before 2005, as it was not in force. Subsequently, fresh circulars were issued in the year 2006, superseding the circular of the year 2005, thus there was No. occasion to follow the circular of 2005, prior to its issuance or thereafter, this circular does not give any right to the Petitioner to challenge the promotion of the Respondent No. 3.
The learned Counsel for the Petitioner, contended that the circular letter was mala-fide, having been issued to accommodate the 3rd Respondent. This contention again misconceived, as a person against whom mala-fides are alleged is not a party to the writ petition. In absence of party, against whom mala-fide is alleged, this Court cannot go into the question of mala-fide. Otherwise also the circular cannot be said to be malafide, as Petitioner was also given opportunity to complete for appointment by promotion.
On consideration, I find No. force in the first contention of the learned Counsel for the Petitioner, as reading of the circular, dated 11.05.2005, shows that it does go contrary to the statutory rules, reproduced above.
The statutory rule do not place any restriction, in making appointment by promotion by holding test of all eligible persons.
It is well settled law, that it is open to the authority to issue administrative instructions to fill up the gap in the statutory rules. This is, what has been done by issuing circular, dated 11.05.2005, for selecting a person for the purposes of appointment by promotion to the post of Sub Inspector of Police.
Instructions cannot be said to be contrary to the rules, as contended by the learned Counsel for the Petitioner. The Petitioner is otherwise, also estopped, to challenge the impugned circular, as he participated in the process of selection, and having been unsuccessful, cannot challenge the circular, especially, when the circular is not contrary to the statutory rules.
No merit. "Dismissed." No. costs.