High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20-9-2007CORAMTHE HONOURABLE MR.JUSTICE K. VENKATARAMANW.P.Nos.7856 & 10101 to 10103 of 2007andConnected Miscellaneous Petitions1. B. Narayanan2. R. Sethu3. P.S. Selvaraj4. T. Vijayakumar5. Chandramohan6. S. Suresh7. S. Balraj8. K. Gowdhaman9. N. Ravichandran10.V. Thangadurai11. S. Ramachandran12. M. Selvarajan13. T. Ganasekar14. K. Rajendran15. A. Murugasamy16. M. Kanakarajan17. V. Ashok kumar18. Palaniswamy19. S. Pechimuthu Pandian20. R. Manimaran21. R. Krishnaswamy22. P.J. Janardanan23. V. Mariappan24. K. Sudanthirarajan25. K. Murugan26. P. Mohan27. G. Pandian28. S. Muruga Subramanian ... Petitioners [in W.P.No.7856 of 2007]1. K. Ramasamy2. K.P. Kesavan3. D. Kanagaraj4. R. Mohan5. M. Selvam ... Petitioners [in W.P.No.10101 of 2007] https://hcservices.ecourts.gov.in/hcservices/

1. M. Karunanithi2. K. Muralidharan3. KR. Radhakrishnan4. S. Muthurajan5. D. Gunasekaran ... Petitioners [in W.P.No.10102 of 2007] 1. K. Elangovan2. G. Marimuthu3. S. Rajendran4. P. Neethimohan5. V.S.Kalivarathan ... Petitioners [in W.P.No.10103 of 2007] vs.1. The State of Tamilnadu represented by The Secretary to Government, Home (Police II) Department, Fort. St. George, Chennia-9.2. The Director General of Police, Dr. Radhakrishnan Salai, Mylapore, Chennai – 4.... R1, R2 in all the Wps3. P. Vasanthakumari4. S. Jayanthi5. Joy Issac Pandi6. M. Pathima Devi7. K. Padmavathy8. H. Vijayanatchiyar9. P. Fathima Rohini10.R. Rathika11.P.Nallakkal12.K.Rajamani13.P.Uma14.P.Emysusila15.S.Saraswathy16.R. Bhuvaneswari17.I.T.Umamaheshwari18.S.Florajayanthi19.A.Pauline20.B.Banummathi21.E.Anusuya22.N.Usharani23.V.Sudharani24.Thandavan25.K.Venugopal26.S.Krishnamoorthy https://hcservices.ecourts.gov.in/hcservices/

27.N.Krishnamoorthy28.N.Subramani29.M.Poongavanam30.D.Kannaian31.P.Murugan32.B. Dharmalingam33.G.Ramachandran34.M.Subbiah35.N.Rajasekaan ... Respondents 3 to 35 [in W.Ps.]No.7856/07 and 10101/07RR3 t 35 impleaded as per orderdated 24.4.007 by KCJ in M.P.No,2 and 3/07in W.P.10101/2007 and M.P.No.3 and 4 / 2007in W.P.7856/2007Writ petitions filed under Article 226 of Constitution of Indiato issue a Declaration, declaring that the Government Order issuedby the 1st respondent in G.O.Ms.No.66 Home (Pol.2) Department dated12.01.2007 deleting rule 4(B) of the T.N. Police Serviceretrospectively from 1.6.2006 as null and void and further directthe respondents to consider the claim of the petitioners forpromotion as Deputy Superintendent of Police Category-1 for theensuing panel of the year 2006-07 respectively.For petitioners : Mr.K. Venkatramani, S.C. For Mr. Muthappan For respondents : Mr.R. Vidhuthalai Advocate General [for R1 and R2] assisted by Mr.G.Sankaran, Spl.Govt.Pleader Mr.L.Chandrakumar [for R3 to R23] Mr.V. Ravikumar [for R24 to R35]C O M M O N O R D E R In all these writ petitions the prayer of the petitioners' isfor a declaration declaring that the Government Order issued by thefirst respondent in G.O.Ms.No.66 Home (Pol.2) Department dated12.01.2007 (hereinafter referred to as "said G.O.") deleting rule 4(B) of the Special Rule for Tamil Nadu Police Serviceretrospectively from 1.6.2006 as null and void and further directthe respondents to consider the claim of the petitioners forpromotion as Deputy Superintendent of Police, Category-I. https://hcservices.ecourts.gov.in/hcservices/

2. The grievance of the petitioners as could be seen from theiraffidavit flows from the following facts:(a) The petitioners have entered the service as directlyrecruited Sub-Inspector of Police through a selection conducted bythe Director General of Police, Chennai. Later they have beenpromoted as Inspector of Police and their next avenue of promotionas Deputy Superintendent of Police Category-1 by recruitment bytransfer of service. Tamil Nadu Services Manual Volume II Section22 deals with Tamil Nadu Police Service and the special rules dealswith appointment and promotion to the post of Deputy Superintendentof Police Category – I. In the said Rule Clause 11 deals with threecategories of Deputy Superintendents of Police in the TamilnaduPolice Service. The mode of appointment of Deputy SuperintendentCategory I is by direct recruitment or recruitment by transfer ofservice from eligible Inspectors of Police from the Tamil NaduPolice Subordidnate Service. The crucial date for drawing up thepanel is first June of every year. The rule (1)(b) says that in sofar as Category I Deputy Superintendent of Police is concerned, aperson must completed five years of service in the rank ofInspector of police, either officiating or permanent and has notreached the age of 55 as on 1st June of the year in which theselection for promotion is made. Thus, the maximum age limit isfixed for promotion of Deputy Superintendent of Police byrecruitment by transfer of service is 55 years as on first June ofthat particular year.(b) While so, based on the announcement made by the HonourableChief Minister of Tamil Nadu in the assembly on 30.8.2006, the upperage limit for promotion to the post of Deputy Superintendent ofPolice from the post of Inspector of Police has been removed. TheGovernment in the "said G.O.", based on the said announcement,deleted the clause in Rule 4(B), 4(C) and 4(D) respectively in theTamil Nadu Police Service Rules retrospectively from 1.6.2006. Thusit has taken away the existing accrued rights of the petitioners whoare already serving in the department liable for promotion on thecrucial date viz., 1.06.2006. Hence, the present writ petitions forthe relief stated above.3. Counter affidavit has been filed by the respondents 1 and 2wherein it has been pointed out that the upper age limit has beenelevated by the "said G.O." in order to extend the benefit to thepersons who are under the verge of retirement without being elevatedto the higher rank due to age factor. It will boost their morale tostrive hard till their superannuation. Further it has been statedthat considering the anomalous situation in the promotion among thepolice personnel and in order to motivate the Inspectors of Police,the Honourable Chief Minister of Tamilnadu has made the above https://hcservices.ecourts.gov.in/hcservices/ announcement. The said announcement made by the Honourable ChiefMinister was given effect to retrospectively from 1.6.2006 since lotof Inspectors of Police who have crossed age of 55 years as on1.6.2006 will also get benefited. Otherwise, many of the of theInspectors may lose their chances to get further promotion.Considering that fact, the Government has issued orders withretrospective effect.4. It has been further urged by the respondents 1 and 2 intheir counter that there is no accrued right for promotion to thepetitioner because the last panel for the year 2005-2006 wasapproved by the Government in G.O.Ms.No.675 Home (Pol.2) Department,dated 27.7.2006 and after that, current panel for the year 2006-20007 is under process. Further it has been urged that the questionof depriving the chances of the petitioners does not arise as noneof the juniors of the petitioner have been considered for promotionand most of the seniors who will be considered for the current panelwill retire from service shortly. 5. It has been further averred that the petitioners whobelongs to 1987 batch Sub-Inspector of Police may either reach ormay not reach the zone of consideration which will be decided onlyon the approval of the estimate of the vacancy by the Government andthe list of eligible candidates is finalised on merits. But beforethat, the petitioners have approached this Court on assumption andpresumption.6. With these backdrop of the matter, Mr.K. Venkatramani,learned Senior Counsel appearing the petitioners contended that (a) the impugned order deleting the upper age limitretrospectively is opposed to pubic policy and hence in violation ofthe service rules made under article 309 of Constitution of India.(b) The Honourable Chief Minister made an announcement only on30.8.2006 in the floor of the legislative assembly and hence therewas no policy decision arrived at before the said date. While so,giving retrospective effect from 1.6.2006 is totally arbitrary anddiscriminatory in nature.(c) The impugned order has been issued to help certainindividuals who have already crossed the age of 55 years and thosewho are working as Security Officers and Personal Officers tovarious higher officials and political heads of the State. Hence onthe ground of malafides also the impugned order is liable to bequashed.(d) The existing rule fixing the age limit as 55 is for thereason that a person with an active participation alone will be able https://hcservices.ecourts.gov.in/hcservices/ to manage the show and persons who are on the verge of retirementmay not be able to achieve the target, since some of them have to beposed as Sub Divisional Officer who has to actively control thesubordinates and also maintain the law and order. (e) in view of relaxing the upper age limit, the chances ofpromotion of the petitioners are postponed endlessly till such ofthose persons who are benefited by the order is promoted andsuperannuated from service.7. Per contra Mr. R. Vidhuthalai, learned Advocate Generalappearing for the respondents 1 and 2 contended that: (a) the Government has taken a policy decision in relaxing theupper age limit and the same is being taken to promote the publicinterest which shall not be interfered by the courts.(b) By relaxing the upper age limit, zone of considerationexpands and enlarged and hence the petitioners cannot have anygrievance. No vested right or interest of the petitioners have beentaken away by the "said G.O." chances of promotion cannot be aground to interfere with the present order.8. Mr.L. Chandrakumar, the learned counsel appearing for theRespondents 3 to 23, who stands benefitted by the relaxation ofupper age, contended that:(a) The Sub Inspectors of Police who have been selected in 1981and Inspector of Police of 1995 batch will be considered first forpromotion as Deputy Superintendent of Police Grade-I and afterconsidering them the consideration will be that of the petitioners.Hence the petitioners are not in the zone of consideration. Whileso, the petitioners have approached this Court on assumption. (b) Relaxation of age is beneficial order and available to allincluding that of the petitioners and hence the petitioners cannothave any grievance.9. Mr. V. Ravikumar, the learned counsel appearing for therespondents 24 to 35, contended on the same footing as that of thecounsel appearing for R3 to R23.10. I have considered the arguments advanced by Mr. K.Venkatramani, the learned Senior Counsel, appearing for thepetitioners, Mr. R. Vidhuthalai, the learned Advocate Generalappearing for the respondents 1 and 2, Mr.L Chandrakumar, thelearned counsel appearing for R3 to R23 and Mr.V. Ravikumar, thelearned counsel appearing for R24 to 35. https://hcservices.ecourts.gov.in/hcservices/

11. The petitioners in all these cases questioned the authorityof the Government in relaxing the upper age limit of retirement bytransfer of service as Deputy Superintendent of Police, Category-Ifor the year 2006-2007. The said decision has been taken by theGovernment keeping in mind that due to age factor alone certainInspectors of Police are denied elevation of higher rank, which issought to be eliminated by the present G.O. It has been explainedby the Government that the said decision has been taken to boosttheir morale to strive hard till they attain the age ofsuperannuation. When such a policy decision has been taken by theGovernment it is not for the petitioners to contend that the G.O. isarbitrary. The Government after considering various factors wouldhave thought it fit to relax the upper age limit. It is within theprovince of the Government to do so and it is not within the purviewof this Court sitting in to decide under Article 226 of theConstitution of India to interfere in such policy decision. Hence,I am unable to accept the contention of the learned counsel for thepetitioners that the Government has no power to relax the upper agelimit. 12. The next question that arises for consideration is whetherthe Government Order could be given effect to retrospectively. Itis an admitted fact that the decision has been announced by theHonourable Chief Minister of Tamil Nadu on 30.8.2006 in the floor ofthe Legislative Assembly and it has been given effect toretrospectively from 1.6.2006. Legislature has power to amend,delete or obliterate, constitute a provision with retrospectiveeffect. Absolutely, there is no bar over the same. The onlyrestriction is that it shall not violate Article 14 of Constitutionof India, arbitrary and unreasonable. Thus the legislature isentirely competent to legislate with retrospective effect, to takeaway or impair any vested right acquired under existing laws sincethey have been made under a written constitution and it can begiven effect to, perspectively or retrospectively. Thus thelegislature has got full competency and power to legislate an Actretrospectively, which cannot be questioned.13. The next contention of the learned senior counsel appearingfor the petitioner is that by removing the upper age limit, thechances of the petitioners for promotion to higher post are totallydiminished. Thus, the impugned order takes away the accrued rightsof the petitioners who are already members of the service. Counteraffidavit has been filed by the respondents 1 and 2 wherein it hasbeen pointed out that it is highly incorrect to state that thechances of the petitioners for promotion are deprived, as lot ofseniors are there before these petitioners in the seniority list andhence, they cannot claim that they are eligible for promotion andthat they are deprived of their promotion. There is no accruedright for promotion to the petitioners because the last panel for https://hcservices.ecourts.gov.in/hcservices/ the year 2005-2006 was approved and issued by the Government inG.O.Ms.No.675, Home (Pol.2) Department dated 27.7.2006 in which thelast person included in the panel belonged to 1979 batch of SubInspector of Police. Hence, after that, current panel for the year2006-07 is under process. The name of Inspectors of Police who areearlier left over for various reasons have to be considered now andthen direct Women Sub Inspectors of Police of 1981 batch have to beconsidered. Succeeding them, the Inspectors of Police who areappointed as direct Grade-I Police Constable during the year 1972are coming under the zone of consideration and then only the 1987batch Sub Inspectors of Police, namely, the petitioners will comeunder the zone of consideration.14. The above statement made in the counter affidavit willclearly prove that the chances of the petitioners for promotion arenot deprived. Even otherwise, whenever any Act or amendment isbrought in force retrospectively or any provision of the Act isdeleted retrospectively, it is bound to affect someone.Furthermore, the petitioners cannot approach this Court on the mereground that their chances of promotion will be affected, if theupper age limit is removed by way of amendment giving retrospectiveeffect.15. The next contention which is to be answered is "whether theimpugned G.O. which is an administrative order, can take away therights of the parties till the Rules are amended". The petitionerhas averred in their affidavit that the impugned order is only anadministrative order and so far the Rules have not been amended tothat effect. 16. By way of reply, the respondents in paragraph 23 of thecounter affidavit, has stated as follows:-"With regard to the averments made in para-10 ofthe affidavit, it is submitted that though theGovernment Order has been issued as an administrativeorder, the Government have also mentioned that necessaryamendments to Special Rules for Tamil Nadu PoliceService will be issued separately and accordingly actionis under process to issue necessary amendments to therules."Furthermore, in the impugned G.O., after extracting theannouncement of the Hon'ble Chief Minister made in the Assembly on30.8.2006, the G.O. reads as follows:-"In pursuance of the announcement made by theHon'ble Chief Minister, the Director General of Policehas sent necessary proposal for deleting the provision https://hcservices.ecourts.gov.in/hcservices/ relating to upper age limit prescribed for promotionof Inspectors of Police as Deputy Superintendent ofPolice (Category-1), (Category-3) and (Category-2) inRule 4(B), 4(C) and 4(D) respectively of the SpecialRules for the Tamil Nadu Police Service withretrospective effect from 1.6.2006.The Government after careful examination of theproposal of the Director General of Police, havedecided to accept the same. They accordingly directthat the provision prescribing upper age limit forpromotion of Inspectors of Police as DeputySuperintendent of Police (Category-1), (Category-3)and Category-2) in Rule 1(B), 1(C) and 1(D)respectively of the Special Rules for the Tamil NaduPolice Service be deleted with retrospective effectfrom 1.6.2006."This makes it clear that even though the announcement made by theHon'ble Chief Minister, which culminated in the form of a GovernmentOrder in G.O.Ms.No.66, Home (POL.2) Department dated 12.1.2007, sofar Rules have not been amended in this regard. Needless to saythat till the Rules are amended in this regard, the respondents 1and 2 cannot enforce, implement and give effect to the impugned G.O.17. Thus, on the discussions made above, the irresistibleconclusions that could be arrived at are that:(a) The Government thought it fit to remove the upper age limitfor promotion to the post of Deputy Superintendent of Police, apolicy decision, which cannot be interfered by this Court. It iswithin the province of the Government to do so and it is not withinthe purview of this Court sitting in to interfere with such policydecision under Article 226 of the Constitution of India.(b) The legislature has power to amend, delete, obliterate, orconstitute a provision with retrospective effect. (c) A mere chance of promotion of the petitioners will beaffected may not be a ground to interfere with the impugnedGovernment Order. (d) However, since the Rules have not been amended, taking awaythe upper age limit for promotion to the post of DeputySuperintendent of Police from the post Inspector of Police by anadministrative order made in G.O.Ms.No.66 Home (Pol.2) Departmentdated 12.1.2007, the same cannot be implemented, till the Rules areamended.18. Hence, for the reasons stated above, I am inclined to holdthat the respondents 1 and 2, by the Government Order in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.66 dated 12.1.2007 cannot remove the upper age limit forpromotion of Inspectors of Police as Deputy Superintendent of Policewithout amending the Rules. These Writ Petitions are thereforedisposed of accordingly. Consequently, the connected MiscellaneousPetitions are closed. No costs. However, I make it clear that thesame could be done by amending the Rules in this regard.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ggs/dpp To1. The Secretary to Government State of Tamilnadu Home (Police II) Department, Fort. St. George, Chennia-9.2. The Director General of Police, Dr. Radhakrishnan Salai, Mylapore, Chennai – 4.1 cc to Mr.L. Chandrakumar, Advocate, sr. 587301 cc toMr.V. Ravikumar, Advocate, sr. 589434 ccs to Mr.T. Aynagaraprabhu, Advocate, sr. 587834 cs to the Government Pleader, Sr. 59095to 59098W.P.Nos.7856 & 10101 to 10103 of 2007;& Connected M.Ps.VC (CO)kk 26/11