R.Balsami v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23 / 07 / 2012CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.25159 OF 2008R.Balsami ... Petitioner Versus1.State of Tamil Nadu Represented by Secretary to Government Home (Police – XVII) Department Fort St. George, Chennai – 600 009.2.The Director of Fire & Rescue Services 12, Rukmani Laxmipathy Salai, Egmore, Chennai – 600 008.... RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of Writ of Declaration, declaring theamendment to the Special Rules, Tamil Nadu Fire Services issued byG.O.Ms.No.1224, Home (Police – XVII) Department, dated 24.09.2008read with first respondent's letter No.21598/Police-17/2008-8 dated30.09.2008 as unconstitutional and null and void and consequentlydirect the respondents to consider the claim of the petitioner forpromotion to the post of Director of Fire and Rescue Services. For Petitioner :Mr.R.Yashod Vardan Senior Counsel for Mr.M.Muthupandian For Respondents : Mr.S.Gomathinayagam Additional Advocate General Assisted by Mrs.Rani Selvam Additional Government Pleader O R D E RThis writ petition is filed by the petitioner seeking for a https://hcservices.ecourts.gov.in/hcservices/ writ in the nature of declaration, to declare that the amendment tothe Special Rules for the Tamil Nadu Fire Services issued videG.O.Ms.No.1224, Home (Police-XVII) Department, dated 24.09.2008 readwith the letter of the first respondent dated 30.09.2008 asunconstitutional, null and void and for a consequential direction tothe respondents to consider the claim of the petitioner for promotionto the post of Director of Fire and Rescue Services. 2.The writ petition was admitted on 21.10.2008. Pending thewrit petition, the petitioner obtained an order of interim stay ofG.O.Ms.No.1224, Home (Police-XVII) Department, dated 24.09.2008. Avacate stay application was filed by the respondent State in M.P.No.2of 2008 together with supporting counter affidavit dated 05.12.2008.But however, this Court by order dated 07.07.2010 made the stayabsolute. 3.The contention of the petitioner was that by the amendmentto Rule 2 of the Special Rules for Tamil Nadu Fire Services vide byG.O.Ms.No.1130, Home (Police-XVII) Department, dated 19.08.1998, theState Government introduced two methods of recruitment for the postof Director of Fire and Rescue Services, namely promotion from thepost of Deputy Director of Fire Service or recruitment by transferfrom the Indian Administrative Service or Indian Police Service. Thesame was challenged by one Samidurai before the Tamil NaduAdministrative Tribunal in O.A.No.829 of 2004. The Tribunal allowedthe Original Application on 27.02.2004. Against the said order, therespondent State filed a writ petition before this Court inW.P.No.30697 of 2006 and the said writ petition was disposed of bythe Division Bench on 28.11.2007. The Division Bench held that therespondent State should first consider the eligible promotees in thefeeder category of Deputy Director by drawing a panel and they shouldresort to appointment by transfer, only if there was no suitablecandidate available for promotion. Without doing so, they cannotstate that they will resort to appoint the persons by transfer fromIndian Administrative Service or Indian Police Service cadre. Thiswas on the basis that the order of Tribunal had already became finalin an earlier case. Thereafter, the State Government issued an orderin G.O.Ms.No.1877, Home (Police-XVII) Department, dated 31.12.2007promoting the said Samidurai, Deputy Director of Fire and RescueServices as Officer on Special Duty in the rank of Head ofDepartment. The petitioner who became the Deputy Director sent arepresentation stating that the post of Director of Fire and RescueServices was vacant and therefore, he wanted his case to beconsidered.4.Thereafter, the petitioner filed a writ petition inW.P.No.13696 of 2008 seeking for a direction to the first respondentState to prepare a panel of eligible Deputy Directors of Fire andRescue Services fit for promotion to the post of Director of Fire andRescue Services. The said writ petition was disposed of by an order https://hcservices.ecourts.gov.in/hcservices/ dated 03.07.2008 with a direction to the respondent State to considerhis representation. 5.It is at this stage, the State Government issued theimpugned order in G.O.Ms.No.1224, Home (Police-XVII) Department,dated 24.09.2008 deleting the method of appointment by promotion anddecided to fill up the post of Director only from the cadre of IndianPolice Service officers in the rank of Additional Director General ofPolice. In the subsequent letter dated 30.09.2008, the StateGovernment informed the petitioner about the amendment of Rule andalso informed that the post of Deputy Director was no longer in thefeeder category. 6.The contention of the petitioner was that amendment toRule was arbitrary and violative of Article 14 of the Constitution ofIndia and if that is allowed, the Deputy Directors, who werehitherto, to be considered only as Deputy Directors, without furtherchance of promotion. He has also referred to the recommendation madeby the Standing Fire Advisory Committee. 7.In the counter affidavit filed by the respondent State, inparas 9 and 10, it was stated as follows:"9........Keeping in view of the enormousresponsibilities and the need for reacting tosituation of crises like floods, fire etc., theGovernment proposes to amend the Special Rules forTamil Nadu Fire Service to provide for a seniorofficer of I.P.S. Cadre in the rank of AdditionalDirector General of Police to Head the Department.Accordingly, a proposal has been called for fromDirector, Fire and Rescue Services on 04.01.2008 andthe same was received from Director, Fire and RescueServices as earlier as 13.3.2008 i.e., much beforethe filing of the W.P.No.13696 of 2008 by thepetitioner, in order to fill up the post of Directorof Fire and Rescue Services, Class-I Post in theTamil Nadu Fire and Rescue Services from the officersborne on Indian Police Service in the rank ofAdditional Director General of Police. It is wrong onthe part of the petitioner to attribute motive theaction of the Government in considering the same andit was done only to nullify the order of this Hon'bleCourt. The Government have also decided to issuesuitable amendment to the existing provision relatingto Class-I post in the Special Rules for the TamilNadu Fire and Rescue Services after consulting theTamil Nadu Public Service Commission and by followingthe usual procedures, and necessary amendment hasbeen issued by the Government in G.O.Ms.No.1224, Home(Police-XVII) Department, dated 24.09.2008. In https://hcservices.ecourts.gov.in/hcservices/ pursuance of the amendment made to the Special Rulesfor the Tamil Nadu Fire and Rescue Services inG.O.Ms.No.1224, Home (Police-XVII) Department, dated24.09.2008, the petitioner has been informed inGovernment Letter No.21598/Police-17/2008-8, dated30.09.2008 that the amended special rules for theTamil Nadu Fire and Rescue Services do not providefor Deputy Directors to be the feeder category forthe post of Director, Fire and Rescue Services andhis representation dated 7.3.2008 and 23.5.2008 arenot feasible of compliance. 10........ It is submitted that considering thecomplexity of the massive Fire and Rescue ServicesDepartment and the enormous public interface thedepartment has discharge the function of thedepartment effectively and efficiently in thesituation of crises like floods, fire etc., whereconstant co-ordination with other line departments ofthe Government is called for, the Government haveamended the rules to provide for a office of I.P.S.Cadre of the rank of Additional Director General ofPolice to head the Department. It is furthersubmitted that to recognise the need to provide forreasonable promotional opportunities to the officersof the level of Deputy Directors in the Fire andRescue Services Department, Government consideringthe proposal of Director, Fire and Rescue Services toupgrade the post of Deputy Director to JointDirector."8.Mr.R.Yashod Vardan, learned Senior Counsel for thepetitioner relied upon a judgment of the Honourable Supreme Court inDEEPAK AGARWAL AND ANOTHER VS. STATE OF UTTAR PRADESH AND OTHERS[2011 (6) SCC 725] for contending that by amendment to rules denyingright to promotion was clearly illegal and in the promotion policy,they should maintain equity. In that case, the Government was advisedto have a relook at the promotion policy for further upgradation ofposts. The learned Senior Counsel for the petitioner sought for asimilar direction to be issued to the Government for considering thecase of Deputy Directors for promotion to the post of Director ofFire and Rescue Services. 9.However, the judgment relied upon by the learned SeniorCounsel for the petitioner do not help the case of the petitioner.The rule framing power under Article 309 of the Constitution of Indiais legislative in character and the said rule can be challenged onlyon the touchtone of Articles 14 and 16 of the Constitution of India.In the present case, the amendment has been made due to the policyadopted by the State Government, wherein the State Government felt https://hcservices.ecourts.gov.in/hcservices/ that unless the Department is maintained by a member of Indian PoliceService holding the rank of Assistant Director General of Police, itwill be difficult to coordinate with the various work of thedepartment. It cannot be said to be either arbitrary or unreasonable.Merely because the petitioner looses the chance of promotion, thatcannot be a ground for making amendment to the Service rules. ThisCourt do not find any arbitrariness in the order passed by the StateGovernment and hence, the writ petition stands dismissed. No costs. Sd/-Assistant Registrar/True Copy/Sub Assistant Registrar TKTo1.The Secretary to Government Government of Tamil Nadu Home (Police – XVII) Department Fort St. George, Chennai – 600 009.2.The Director of Fire & Rescue Services 12, Rukmani Laxmipathy Salai, Egmore, Chennai – 600 008. + One Cc to Mr.M.Muthu Pandian, Advocate Sr.43251 + Two CCs to the Government Pleader Sr.Nos.38929 & 43491 W.P.NO.25159 OF 2008 BS(CO)DRL : 13/08/2012