T.Dhasian v. Chennai Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.4.2009CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANW.A.No.1071 of 20071. The Commissioner of Police Chennai Police Chennai-600 008.2. The Superintendent of Police Crime Branch C.I.D. Northern Zone, Chennai-2... Appellants/ RespondentsVs.T.Dhasian.. Respondent/ PetitionersPRAYER: Against the order of the learned Single Judge dated13.4.2006 made in W.P.No.25237 of 2005.W.P.No.25237 of 2005 presented under Article 226 of theConstitution of India to issue a writ of certiorarified mandamus to call for records of the respondents especially the secondrespondent relating to his proceeding made in R.C.No.A2/246/2373/02 dated 21.4.2003 and quash the same as null andvoid, illegal and invalid and consequently directing therespondents to refix the petitioners seniority on par with hisjunior Thiru Suyambu H.c.6654 of Chennai City police permittinghim to undergo tests for further promotion as Sub-Inspector ofpolice pursuant to crucial 2002-2003 panel fixing his name in thesuitable place therein and promote him as sub-inspector of policewill all attendant benefits.For Appellants:Mr.R.ThirugnanamSpecial Government PleaderFor Respondent:Mr.A.Amalraj https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTP.JYOTHIMANI,J.The writ appeal is directed against the order of the learnedSingle Judge dated 13.4.2006 made in W.P.No.25237 of 2005, allowingthe writ petition with a direction to the respondents in the writpetition, who are the appellants herein, to consider the claim ofthe writ petitioner/ respondent herein for further promotion inaccordance with law.2.1. The respondent, who was the original writ petitioner,joined service as Grade-II Police Constable on 14.10.1976 and wasposted in Madras City Armed Reserve. He was promoted as Naik by thefirst appellant on 14.5.1980 and thereafter, he was further promotedas Grade I Police Constable on 4.9.1981 in the Armed Reserve. 2.2. According to the writ petitioner one Suyambu, who wasappointed during December, 1976, was transferred from Armed Reserveto Dog Squad in the year 1982, the year in which the petitioner wasalso transferred from Armed Reserve to City Traffic Police againsthis willingness. According to him, there are no norms for thepurpose of transfers to various Departments, either Dog Squad orTraffic Department and there are no guidelines.2.3. The grievance of the petitioner is that the said Suyambuwas promoted as Grade I Police Constable and Head Constable on thesame day, viz., on 20.6.1984, however, the petitioner was promotedas Head Constable only on 1.8.1999. It is also the writpetitioner's case that on the basis of a representation made by oneMani, who was working as Grade II Police Constable during December,1992, he was given double promotion as Grade I Police Constable andHead Constable with retrospective effect from 30.12.1985. Accordingto the petitioner when he has passed all the necessary tests for thepurpose of promotion to Grade I Police Constable in the ArmedReserve, he should have been promoted on par with his junior,Suyambu as Head Constable.2.4. On the petitioner making representation, by way ofgrievance, to the second appellant, the second appellant has passedthe impugned order on 21.4.2003 rejecting the claim of the writpetitioner stating that the said Suyambu was posted in Dog Squad asa special case, since the same was a Specialized Unit and none waswilling to serve in the said Dog Squad, and therefore, he was givenpromotion as Head Constable. It is also stated in the impugnedorder that no junior to the writ petitioner was promoted as HeadConstable prior to 1.8.1999, by referring to the cases of his batch-mates. https://hcservices.ecourts.gov.in/hcservices/

2.5. It is challenging the said order, the writ petitioner hasapproached the Tamil Nadu Administrative Tribunal by filingO.A.No.2775 of 2003, which was subsequently transferred to thisCourt as W.P.No.25237 of 2005 and allowed by the learned SingleJudge by order dated 13.4.2006.2.6. The learned Judge, having considered the submission madeon behalf of the writ petitioner that while the petitioner wasworking as Grade I Police Constable in the Armed Reserve, to whichpost he was promoted on 4.9.1981, and when he was transferred toTraffic Department on 19.5.1983, he was transferred as Grade IIPolice Constable, whereas the said Suyambu, who was also working asGrade I Police Constable, has been transferred to Dog Squad and hewas given further promotion as Head Constable, and having found thatparagraph (5) of the counter affidavit filed on behalf of theappellants was contrary to the records, and taking note of the factthat there has been suppression with regard to the promotion of thewrit petitioner as Grade I Police Constable on 4.9.1981 and thatfurther promotion given to a similarly situated person, viz.,Suyambu, has not been conferred on the petitioner, allowed the writpetition holding that there was arbitrary exercise of powers. 3. It is clear, on fact, that while the petitioner wasappointed in Armed Reserve on 14.10.1976 as Grade II PoliceConstable and promoted as Naik on 14.5.1980 and was also promoted asGrade I Police Constable on 4.9.1981, which fact is not in dispute,the writ petitioner was transferred to Traffic Department on19.5.1983 and while he was transferred he was posted as a Grade IIPolice Constable. It is also not in dispute that while working inthe Traffic Department as Grade II Police Constable, he was promotedas Grade I Police Constable on 1.8.1994 and was subsequentlypromoted as Head Constable on 1.8.1999. On the other hand, thesaid Suyambu, who was working as Grade II Police Constable in ArmedReserve on 1.3.1977 was promoted as Naik on 21.6.1981 and wassubsequently drawn to Dog Squad and given promotion as Grade IPolice Constable as well as Head Constable on 20.6.1984. 4. Even though it is stated in the counter affidavit that thereare no rules governing the said transfers, one aspect which has beenlost sight of by the learned Single Judge is that when once the writpetitioner was transferred from Armed Reserve to Traffic Departmenton 19.5.1983, admittedly, he was transferred and posted as Grade IIPolice Constable and he has never questioned that at any point oftime. His further promotion as Grade I Police Constable on 1.8.1994has also not been questioned by him. However, the promotion givento the said Suyambu on 20.6.1984 is justified by the appellantssaying that, at the time, when the said Suyambu was drawn to the DogSquad, there was no one who offered for transfer to Dog Squad, which https://hcservices.ecourts.gov.in/hcservices/ was a specialized unit and inasmuch as the said Suyambu has optedfor transfer to the said Dog Squad, as a special case he was givenpromotion as Grade I Police Constable and Head Constable on the sameday, namely on 20.6.1984. It is also no doubt true that the saidSuyambu, when he was posted in Dog Squad, which is under the LocalPolice, has maintained his lien in the Armed Reserve. On the otherhand, the writ petitioner who was transferred to Traffic Departmenton 19.5.1983 has not whispered against such transfer and posting asGrade II Police Constable. 5. The contention of Mr.A.Amalraj, learned counsel for therespondent that a discrimination has been shown against therespondent when compared with the said Suyambu has no basis. Firstof all, when such discrimination was stated to have been shown tothe writ petitioner while he was transferred from Armed Reserve toTraffic Department on 19.5.1983, by posting him as Grade II PoliceConstable, he should have raised his objection. Having accepted thesame and worked in the said capacity for nearly eleven years andhaving thereafter been promoted in the Traffic Department as Grade IConstable on 1.8.1994, it is too late for him to question about thearbitrariness or otherwise in denial of his promotion, especially inthe circumstances that it has been the specific case of theappellants that in respect of Suyambu, he has opted to work in DogSquad, which nobody was willing, and therefore, his case has beentreated as a special category.6. The reliance placed by the learned counsel for therespondent on the judgment of the Supreme Court in Dr.Ms.O.Z.Hussainv. Union of India, 1990 (Supp) SCC 688 to substantiate hiscontention of arbitrariness is not applicable to the facts andcircumstances of the present case. That was a case, where, in theabsence of any provision for promotion channel for Non-Medical Group'A' Scientists in the establishment of Director General of HealthServices under the Ministry of Health and Family Welfare and whensuch provision was available for the similarly placed officers inother Ministries, the Hon'ble Supreme Court has held that denial ofpromotion was not valid, as under:"7. This Court, has on more than one occasion, pointedout that provision for promotion increases efficiencyof the public service while stagnation reducesefficiency and makes the service ineffective.Promotion is thus a normal incidence of service. Theretoo is no justification why while similarly placedofficers in other ministries would have to benefit ofpromotion, the non-medical 'A' Group scientists in theestablishment of Director General of Health Serviceswould be deprived of such advantage. In a welfareState, it is necessary that there should be anefficient public service and, therefore, it should have https://hcservices.ecourts.gov.in/hcservices/ been the obligation of the Ministry of Health to attendto the representations of the Council and its membersand provide promotional avenues for this category ofofficers. It is, therefore, necessary that on themodel of rules framed by the Ministry of Science andTechnology with such alterations as may be nownecessary, appropriate rules should be framed withinfour months from now providing promotional avenue forthe 'A' category scientists in the non-medical wing ofthe Directorate."7. Again the judgment of the Supreme Court in State of Tripurav. K.K.Roy, [2004] 9 SCC 65, relied upon by the learned counsel forthe respondent, has no application. That was a case wherein anemployee was appointed to a single-cadre post with no promotionalavenue and keeping in view his educational qualification, theSupreme Court held that he was entitled to two higher grades, whiledeprecating the failure on the part of the State to frame such ascheme, when such schemes had been framed by other States onrecommendations of the Pay Commission.8. In such view of the matter, there is absolutely nodiscrimination shown by the appellants and in these circumstances,it cannot be said that the original impugned order of the secondappellant dated 21.4.2003 is either arbitrary or illegal, especiallyin the circumstances that the writ petitioner has not chosen tochallenge the original order dated 19.5.1983, which he cannot do atthis late point of time after nearly 26 years.In these circumstances, the writ appeal is allowed and theorder of the learned Single Judge dated 13.4.2006 is set aside. Nocosts. Consequently, M.P.No.3 of 2007 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo:1. The Commissioner of Police Chennai Police Chennai-600 008. https://hcservices.ecourts.gov.in/hcservices/

2. The Superintendent of Police Crime Branch C.I.D. Northern Zone, Chennai-2.1 cc to Mr.A. Amalraj, Advocate, SR. 191451 cc to Government Pleader, Sr. 19052 W.A.No.1071 of 2007JSV (CO)kk 7/5