V.Vanniaperumal v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.12.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.1815 of 2007V.Vanniaperumal Petitioner vs.1.The State of Tamilnadu represented by its Secretary to Government, Home Department, Fort St. George, Chennai-600 009.2.The Director General of Police, Chennai.3.The Deputy Inspector General of Police, Villupuram.4.The Superintendent of Police, Tuticorin District. ... Respondents Writ Petition is filed under Article 226 of theConstitution of India to issue a Writ of CertiorarifiedMandamus, calling for the records on the file of the secondrespondent in his proceedings Rc.No.267423/NOS IV(1)/2006 dated31.1.2006 and quash the same and direct the respondents topromote the petitioner as Sub Inspector of Police with effectfrom the date of promotion given to his Juniors (i.e.) 1.6.2004with all benefits by including his name in the "C" list of HeadConstables fit for promotion as Sub Inspector of Police for theyear 2002 at appropriate place, without insisting the petitionerto attend the range promotion Board in the light of the Orderspassed by the Tamilnadu Administrative Tribunal inO.A.No.5455/98 dated 14.2.2001 which was affirmed by theDivision Bench of Madras High Court in W.P.No.29862/2002 dated22.2.2005 and also in the light of the orders of the DivisionBench of Madras High Court in W.P.No.21652 of 2003 dated18.3.2005 and also taking into account the relaxation granted to https://hcservices.ecourts.gov.in/hcservices/ many Head Constables in various Government Orders.For Petitioner : Mr..S.SelvathirumuruganFor Respondents : Mr.V.Manoharan, Government Advocate. -----O R D E RThis Writ Petition is filed to issue a Writ ofCertiorarified Mandamus, calling for the records on the file ofthe second respondent in his proceedings Rc.No.267423/NOS IV(1)/2006 dated 31.1.2006 and quash the same and direct therespondents to promote the petitioner as Sub Inspector of Policewith effect from the date of promotion given to his Juniors(i.e.) 1.6.2004 with all benefits by including his name in the"C" list of Head Constables fit for promotion as Sub Inspectorof Police for the year 2002 at appropriate place, withoutinsisting the petitioner to attend the Range Promotion BoardTest in the light of the Orders passed by the TamilnaduAdministrative Tribunal in O.A.No.5455/98 dated 14.2.2001 whichwas affirmed by the Division Bench of this Court inW.P.No.29862/2002 dated 22.2.2005 and also in the light of theorders of the Division Bench of this Court in W.P.No.21652 of2003 dated 18.3.2005 and also taking into account the relaxationgranted to many Head Constables in various Government Orders.2. Petitioner joined the services in the Police Departmentas Grade-II Police Constable. While serving as Grade-I PoliceConstable, petitioner was dismissed from service on 18.6.1998 onthe grave charges of corruption. Petitioner challenged theorder of dismissal in O.A.No.5455 of 1998 and the order ofdismissal was set aside by the Tamilnadu Administrative Tribunalon 14.2.2001. Consequent to the order of the Tribunal,petitioner was reinstated into service without backwages on17.4.2001. Petitioner claimed backwages by filing ContemptPetition No.21 of 2002. In the meanwhile, the Department filedappeal to this Court in W.P.No.29862 of 2002 on 20.6.2002, afterone year and two months from the date of reinstatement. On1.10.2002, the Division Bench of this Court granted interim stayof the order of the Tamilnadu Administrative Tribunal passed inO.A.No.5455 of 1998. Thereafter, on 7.11.2002, the said interimstay was vacated in W.V.M.P.No.1506 of 2002. On 22.2.2005,the Writ Petition No.29862 of 2002 filed by the Department wasdismissed and the order of the Tribunal in O.A.No.5455 of 1998reinstating the petitioner was upheld. According to thepetitioner, he was working from 17.4.2001 on which date he wasreinstated consequent to the order of the Tribunal. The https://hcservices.ecourts.gov.in/hcservices/ grievance of the petitioner is that for the period from14.2.2001 when the Tribunal set aside the order of the dismissaltill 1.10.2002 when interim stay was passed by the DivisionBench of this Court, there was no impediment in considering thepetitioner's name to participate in the Range Promotion BoardTest, in particular, which was conducted for the year 2002 inthe subsequent year, viz., 2003. There was no impediment forthe Department not to consider the name of the petitioner duringthe above period. In Proceedings D.O.No.1490/2002 A3/24318/2002dated 13.9.2002, the Superintendent of Police, ThoothukudiDistrict passed an upgradation order in respect of Grade-IPolice Constables (Local) as Head Constables. In thatproceedings 85 Grade-I Police Constables were upgraded as HeadConstables. Insofar as the petitioner is concerned, theproceedings states as follows:-"2. The following Gr.I P.Cs. mentionedin Annexure 1 enclosed who were appointedupto 31.12.1986 are coming under the zone ofconsideration for the year 2002-2003. Theircases are not considered for upgradation asHead Constable due to the reasons notedagainst them."As per Annexure I, petitioner's name finds place at serial No.7.The reason for non-inclusion in the upgradation list is statedas follows:-"7Gr.I P.C.1512VanniaperumalRemoved from service w.e.f.3.7.98 by DIG Villupuram Rangein Proceedings No.B2/PR.22/98dt.18.6.98. Reinstated on18.4.01 as per TAT orders.Opinion for filing W.P. isawaited." The above said order, however, has not been challenged onmerits. Thereafter, petitioner submitted a representation on30.7.2005 to the Director General of Police, the secondrespondent and the Deputy Inspector General of Police, thethird respondent to consider his case for inclusion in the "C"list of Head Constables fit for promotion to the post of SubInspector of Police. The reason for giving the representationis that six persons were promoted as Sub Inspector of Policewith effect from 1.6.2004 and those six persons are juniors tothe petitioner. Petitioner pleaded that his case has beenerroneously overlooked stating that the opinion is awaited forfiling writ petition. The petitioner pointed out that on22.2.2005 the Writ Petition No.29862 of 2002 filed by theDepartment was dismissed and therefore, the case of the https://hcservices.ecourts.gov.in/hcservices/ petitioner should have been considered on merits.3. Learned counsel appearing for the petitioner referredto the G.O.Ms.No.986 Home (Police III) Department dated 2.5.1988and another G.O.Ms.No.2099 Home (Police III) Department dated23.9.1988 and the Memorandum in R.O.No.404/90 dated 24.9.1990issued by the third respondent, whereby similarly placed personshave been included in the "C" list for promotion to be posted asSub Inspector of Police exempting them from appearing for theRange Promotion Board Test. Therefore, it is stated that therespondents have discriminated the petitioner in the orderrejecting such representation, whereas benefits have been givento other police constables. 4. In the present case, learned counsel for the petitionerpleaded that from 14.2.2001 till 1.10.2002 there was noimpediment in including the name of the petitioner in the RangePromotion Test of the year 2002 held in the year 2003. Further,on and from 7.11.2002 there was no impediment in permitting thepetitioner to take part in the Range Promotion Board Test sincethe Division Bench of this Court has already vacated the interimstay passed against the order of the Tribunal. He also referredto the case of one T.V.Devarajan decided by the Division Benchof this Court on 18.3.2005 in W.P.No.21652 of 2003 whereinseveral Government Orders have been cited to show thatexemptions have been granted for several similarly persons fromparticipating the Range Promotion Board Test. 5. The Joint Secretary to Government, Home(General)Department filed a counter-affidavit on behalf of the firstrespondent wherein the Department has reiterated that thepetitioner should undergo Range Promotion Board Test thatappears to be the one and only stand taken by the respondentDepartment on merits. 6. In the present case, the non-inclusion of thepetitioner in the proceedings dated 22.4.1986 as per Annexure-Ihas not been challenged on merits. In any event, after the staywas vacated on 7.11.2002, the petitioner could have made arepresentation or approach this Court for considering him toparticipate in Range Promotion Board Test as applicable thenpending disposal of the writ petition. The petitioner has,however, restrained himself from coming to this Court for thereason that the writ petition filed by the Department waspending. 7. Nevertheless, as the Government granted exemption infavour of so many persons as has been pointed out by theDivision Bench of this Court in W.P.No.21652 of 2003 in its https://hcservices.ecourts.gov.in/hcservices/ order dated 18.3.2005, the case of the petitioner should havebeen considered for exemption from participating in the RangePromotion Board Test in view of the delay caused by theDepartment in pursuing the matter before this Court (i.e.) thedelay of more than one year and two months from 17.4.2001 to20.6.2002. Further, the Division Bench of this Court vacatedthe stay on 7.11.2002. If the petitioner had been subjected toRange Promotion Board Test at that point of time as pointed outby the counsel for the petitioner, the petitioner would not haveany grievance about the long delay which has caused prejudice tothe petitioner. The impugned order in the present case has notconsidered the period during which the Department had delayedthe matter from 17.4.2001 to 20.6.2002. The Department,however, exempted the Range Promotion Board Test in respect ofsimilarly placed persons for one or other reason. 8. The grievance of the petitioner seems to be genuinethat during the relevant time, viz., in the year 2002 there wasno impediment for the Department not to consider the name ofthe petitioner for the Range Promotion Board Test. Though theproceedings dated 22.4.1986 has not been challenged, as couldbe seen from Annexure-I, the reason given for non inclusionseems to be that opinion for filing the writ petition isawaited, that cannot be a good ground to keep the matter pendingand denying the petitioner's claim for exemption from RangePromotion Board Test.9. In such view of the matter, considering the earlierdecision of the Division Bench of this Court in W.P.No.21652 of2003 dated 18.3.2005, the order under challenge is notjustified and the matter is to be reconsidered by the Governmentin the light of the Division Bench Judgment referred to aboveand also on the basis of the plea of the petitioner on meritsthat is non inclusion in the "C" list for promotion to the postof Sub Inspector of Police was based on error committed by theDepartment not referring him to the Range Promotion Board Testfrom 14.2.2001 till 1.10.2002 and on and from 7.11.2002 whenthe stay was vacated. This factor should have been consideredby the competent authority which was not done. 10. In the light of the above observations, the impugnedorder is set aside and the matter is remitted to theGovernment to reconsider the issue raised by the petitioner toinclude his name in the "C" list for Head Constable to the post https://hcservices.ecourts.gov.in/hcservices/ of Sub Inspector of Police in the year 2002. Such decision willbe taken in the light of the Division Bench decision referred toabove and appropriate orders shall be passed before the end ofFebruary, 2010. The Writ Petition is ordered as above. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.Registrar tsTo 1.The Secretary to Government of Tamil Nadu, Home Department, Fort St. George, Chennai-600 009.2.The Director General of Police, Chennai.3.The Deputy Inspector General of Police, Villupuram.4.The Superintendent of Police, Tuticorin District.+1cc to Mr.S.Selvathirumurugan, Advocate Sr 68209+1cc to Govt.Pleader Sr 67782BV(CO)km/18.12. W.P.No.1815 of 2007