Judgment · High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.02.2008CORAMTHE HONOURABLE MR. JUSTICE P.K.MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUW.P.NO.20800 OF 2004andWPMP.NO.25036 OF 20041. The Select Committee constituted for the year 1994 I.P.S. Select List, rep. by the Secretary to Government of Tamil Nadu, Fort St. George, Chennai 600 009.

The Director General of Police, Chennai 600 004... PetitionersVs.1. R. Radhakrishnan, IPS Deputy Commissioner of Police, Headquarters, Madurai City, Madurai.2. The Registrar, CentralAdministrative Tribunal, Chennai Bench, Chennai 104.

Union Public Service Commission, rep. by its Secretary, New Delhi.

Union of India, represented by the Secretary to Government of India, Ministry of Home Affairs, New Delhi.

R.Ramasamy IPS (Retd) C 68, 11th West Street, Kamarajar Nagar, Thiruvanmiyur Housing Board, Chennai – 41. https://hcservices.ecourts.gov.in/hcservices/

S.Thanikodi, IPS (Retd) 12, First Street, Nagappa Nagar, Chrompet, Chennai – 44.

A.Prabakaran, IPS (Retd) 6, East Costed Cross Road, Besant Nagar, Chennai – 90.R5 for R7 Impleaded as per order of court dated 4.4.06 and made in WP No.29819/04 inWP No. 20800/04 by PKMT and RST .. RespondentsPetition filed under Article 226 of the Constitution of India for the issuance of writ of certiorari to call for the records pertaining to the order dated 6.4.2004 in O.A.No.816 of 2003, on the file of the Central Administrative Tribunal, Chennai and quash the same. For Petitioner : Mr.M. Dhandapani Special Govt. PleaderFor Respondent-1 : M/s.Muthumani Doraisami Kandavadivel DoraisamiFor Respondents 3 & 4 : Mr.K. Sridhar, SCGSC.,

O R D E R(Order of the Court was made by P.K. MISRA, J)The present writ petition has been filed by the SelectCommittee which had selected the panel for promotion to the cadre ofI.P.S. and by the Director General of Police, Chennai against the order passed by the Central Administrative Tribunal in O.A.No.816 of 2003dated 6.4.2004.2. Such Original Application was filed by the presentRespondent No.1 with a prayer to consider the representation of such applicant dated 28.4.2003 to constitute a Review Select CommitteeMeeting in order to eliminate the names of M/s.T. Mariappan, R.Ramasamy,V. Somu, S. Thanikodi and A. Prabhakaran, from the select list contained in No.I-14013/8/95-IPS.I dated 3.4.1995, 3.11.1995 and 19.5.1997 and to include the name of the applicant in the Select List for 1994 with the year of allotment as 1991. 3. The basic allegations in such Original Application were as follows :-The applicant before the Tribunal was directly recruited as aDeputy Superintendent of Police and joined service as such on 27.5.1985. https://hcservices.ecourts.gov.in/hcservices/ He became an approved probationer in the said category with effect from26.5.1987 and was subsequently promoted as Additional Superintendent of Police on 15.3.1996 and as Superintendent of Police on 15.7.1996.

Therewas no direct recruitment to the post of Deputy Superintendent of Policeduring the years 1978-79, 1979-80, 1980-81 and 1981-82. Consequentlythe State Government had temporarily promoted several Inspectors of Police under Rule 10(a)(i)(1) of the Tamil Nadu General SubordinateService Rules during the year 1982-83 and also between November, 1984and 27.5.1985. M/s.T. Mariappan, R. Ramasamy, V. Somu, S. Thanikodi, A.Prabhakaran were as such promoted from the post of Inspector to the post of Deputy Superintendent of Police in the aforesaid basis. Subsequently, on 27.9.1985, the Government of Tamil Nadu by invokingRule 23(a)(1) of the General Rules of the Tamil Nadu General SubordinateService Rules, had regularized services of such promotees including the five persons named above retrospectively from the date of their initial promotion as Deputy Superintendent of Police. The inevitable controversy regarding seniority of the applicant vis-a-vis suchpromotees, after long vicissitudes reached the Apex Court which upheld the contention of the applicant.3.1 To cut a long story short, ultimately, the applicant was considered as senior to those who were temporarily promoted as DeputySuperintendent of Police.

4. The dispute in the present case revolves round the promotion to I.P.S. So far as that chapter is concerned, the persons named above and 3 others were appointed to I.P.S. with effect from3.11.1995, subject to the outcome of O.A.No.1003 of 1995 filed by one S.Rajan. The applicant’s name did not find place, even though he was within the zone of consideration. The applicant’s name was empanelled and he was promoted only during the year 1998.5. The contention of the applicant was to the effect that since ultimately he was found to be senior to other persons, who have been promoted earlier, his application for holding a Review DPC should have been considered favourably by the Government. Such submission of the applicant found acceptance by the Tribunal which under the impugned order has directed for holding a review DPC.6. The Tribunal, while directing reconsideration, has observed that the persons who were empanelled in the select list for I.P.S.during the year 1994-95 had not completed 8 years of Service as DeputySuperintendent of Police and, therefore, they were not eligible to beconsidered for inclusion in the select panel.

This conclusion of the Tribunal is seriously challenged by the present petitioners on the ground that the provisions contained in the third proviso of Regulation5(2) of the Indian Police Service (Appointment by Promotion)Regulations, 1955, hereinafter referred to as "the Regulations", do not contemplate that a person should be holding the post for 8 years of continuous substantive service and on the other hand the provision https://hcservices.ecourts.gov.in/hcservices/ contemplates only 8 years of continuous service (whether officiating or substantive). 7. The relevant provisions in the third proviso to Regulation5(2) are to the following effect :-5. Preparation of list of suitable officers. (1) . . . (omitted)(2) (omitted) (omitted) (omitted)Provided also that the Committee shall not consider the case of a member of the State Police Service unless on the first day of April of the year in which it meets he is substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of DeputySuperintendent of Police or in any other post or posts declared equivalent thereto by the State Government. Explanation.- The powers of the State Government under the third proviso to this Sub-regulation shall be exercised in relation to the members of the State Civil Service of aconstituent State, by the Government of the State.”

In our considered opinion, the contention raised by the petitioners, which is also supported by the learned counsel appearing for Respondent No.3, namely, Union Public Service Commission, is acceptable. The third proviso contemplates three aspects. Firstly, the crucial date is the first day of April of the year which the Committeemeets for selecting the panel. Secondly, the candidate must be a member of the State Police Service in substantive capacity. Thirdly, such candidate must have completed at least eight years of continuous service(whether officiating or substantive) in the post of DeputySuperintendent of Police (or equivalent). The proviso no where contemplates that the persons should be holding 8 years of continuous substantive service as Deputy Superintendent of Police but, only stipulates that on the date of consideration, the person should beholding the post in the State Police Service on substantive basis. Evenassuming that the selected persons had not held the post of DeputySuperintendent of Police on substantive basis on the crucial date, it is obvious that they had held the post of Inspector of Police, which is obviously a post in "State Police Service", on substantive basis.

The other requirement is that the candidate must have completed eight years of continuous service (whether officiating or substantive). In the present case, the concerned persons had held the post of Deputy Superintendent of Police, but, obviously on officiating basis. Therefore, it cannot be said that such officers were https://hcservices.ecourts.gov.in/hcservices/ ineligible. Once such officers were eligible, as apparent from the materials on record, they were placed above the applicant because such officers were considered ‘outstanding’, whereas the applicant was not categorised as ‘outstanding’, but as ‘very good’. Therefore, keeping in view the number of vacancies, all officers, who were considered‘outstanding’, were promoted and the applicant was not considered suitable for promotion. It is to be noted that non-inclusion of the applicant occurred during the year 1995 and subsequently he was promoted only during the year 1998. For all those years, i.e., from 1995 to1998, the applicant had never challenged his non-inclusion in the cadre of I.P.S. It is true that certain litigations were pending relating to seniority in the cadre of Deputy Superintendent of Police. However, as has been rightly pointed out, at the time when the names were considered, the applicant was considered senior to other promotees. Moreover, the empanelment in the select list takes place on the basis of merit by categorizing the eligible candidates in different categories and only on that basis the officers, even though juniors, were promoted as they were found to be outstanding. Since non-selection of the applicant remained unchallenged for a considerable length of period and, on the other hand, he accepted promotion to I.P.S. only during the year1998, we do not think it was open to the applicant to rake up such old matters, which had assumed finality. The cause of action for the applicant arose in 1995 itself, when he was not promoted. But, he could not have kept quiet for a considerable length of period. The mere fact that he made certain representations after he was promoted to I.P.S. in1998, cannot have the effect of reviving the claim which was barred by limitation.

Apart from the above, the applicant was challenging the very basis of the selection of five persons on the ground that those persons were ineligible. If the applicant’s contention would be accepted, in normal course, not only the applicant would become senior to those persons but also it may so happen that those persons could be found ineligible for being considered. In such a scenario, it is obvious that the applicant was required to implead those persons who were likely to be affected by any adverse decision in the case filed by the applicant.

The Tribunal has not at all considered the above aspects relating to limitation as well as non-joinder of necessary parties. Apart from these later obstacles, as already observed by us, the requirement of the Regulation was to the effect that the person should have been in office continuously for 8 years, whether officiating or substantive basis and not that he should have been holding the post of Deputy Superintendent of Police on substantive basis continuously foreight years. We have already held that the persons who are eligible were deemed to have been holding substantive post from the first day of the year, when empanelment took place. https://hcservices.ecourts.gov.in/hcservices/

For the aforesaid reasons, we are inclined to set aside the order passed by the Tribunal and the writ petition is therefore allowed. No costs. Consequently, the connected miscellaneous petitionis closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrardpkTo1. The Secretary to Govt. of Tamilnadu, Select Committee Constituted for the year 1994 IPS Select List, Fort St. George, Ch-92. The Director General of Police Chennai – 4.3. The Registrar, Central Administrative Tribunal, Chennai Bench, Ch-104.4. The Secretary, Union Public Service Commission, New Delhi.5. The Secretary to Govt. of India, Union of India, Ministry of Home Affairs, New Delhi.+1 cc to Mr.K.Sridhar, Advocate, SR.No.6915.+1 cc to Mr.Muthumani Doraisami, Advocate, SR.No.7449.1 cc To The Government Pleader, SR.7065.Sr (Co)krd / 24.4ORDER IN WP.NO.20800/2004