A. Annadurai v. The Director General of Police, Chennai-4

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.07.2009CORAM:THE HONOURABLE MR.JUSTICE S.MANIKUMARWrit Petition No.44650 of 2006(O.A.No.4359 of 1999)A. Annadurai ... Petitioner/Applicant Vs.1. The Director General of Police,Chennai-4.2. The Commissioner of Police,Salem City, Salem-7.3. The Chairman,City Promotion Board,Salem City and Dy. Commissioner of Police,Crime & Traffic,Salem City. ... RespondentsPrayer: Writ Petition came to be numbered under Article 226 ofConstitution of India by way of transfer of O.A.No.4359 of 1999 fromthe Tamil Nadu Administrative Tribunal praying for a writ ofMandamus, to direct the respondents consider the claim of theapplicant for inclusion of his name in the C list of head constablesfit for promotion as Sub-inspector of police without undergoing thetest and grant him all consequential service and monetary benefitsand also such other reliefs. For Petitioner : Mr. K. Venkataramani, Senior Counsel for Mr.M. MuthappanFor Respondents : Mr.S.Gopinathan, AGP (Writ) https://hcservices.ecourts.gov.in/hcservices/ O R D E R At the time of filing of the Original Application before theTribunal, the petitioner was aged 48 years and was serving as HeadConstable, Traffic Investigation Wing, Salem City, Salem. 2. It is the case of the petitioner that he entered PoliceDepartment as Grade-II Police Constable, in Salem Armed Reserve on14.12.73. Gradually, he was promoted to the post of Head constableon 5.2.93. He had received 146 rewards and did not come to anyadverse notice till the date of filing of the Original Applicationbefore the Tamilnadu Administrative Tribunal, Chennai.3. The Director General of Police, Chennai, the first respondentissued a memorandum in R.C.No.154645/NGBIV/3/98, dated 29.9.98, toconvene Range Promotion Boards in various ranges in Tamilnadu forpreparation of Special list of Head Constables fit for promotion asSub Inspectors of Police for the year 1998. The petitioner hascompleted 4 years of service and was fully qualified to be consideredfor promotion. However, at that point of time, he has facing adisciplinary proceedings in P.R.No.1/97 on the file of theSuperintendent of Police, Salem under Rule 3(b) of the TamilnaduPolice Subordinate Service Rules. 4. The Enquiry Officer submitted a report holding that thecharges were not proved. Citing the pendency of disciplinaryproceedings, he was not allowed to participate in the Range PromotionBoard. The petitioner came to know that two of his colleagues,Mr.Pandurangan, H.C.1581 and Mr.Subramnanian H.C.2461, who werefacing disciplinary proceedings under Rule 3 (b) of the TamilnaduPolice Subordinate Service Rules, appeared in the Range PromotionBoard and subsequently the said Mr.Subramanian was selected andincluded in the list. In these circumstances, the petitioner hasfiled Original Application before the Tamilnadu AdministrativeTribunal, Madras, for the relief as stated supra, which has beensubsequently transferred and renumbered as the present Writ Petition.5. In support of the relief sought for in the Writ Petition,Mr.K.Venkatramani, Learned Senior Counsel appearing for thepetitioner submitted that no prohibition has been imposed in thememorandum of the Director General of Police, Chennai, dated 29.9.98,restricting the rights of the Head Constables who were facingdisciplinary proceedings from participating in the Range PromotionBoard. In the absence of any restriction, the Salem Range promotionBoard ought to have allowed the petitioner, to participate in theRange Promotion Board, as was done in the case of the other twoPolice Head Constables in Vellore Range. He further submitted that https://hcservices.ecourts.gov.in/hcservices/ failure to apply the same yardstick amounts to violation of Article14 of the Constitution of India. It is his further contention thatif the petitioner had been allowed to participate in the RangePromotion Board, he would have come out successful in the selectionand promoted as Sub Inspector of Police in the year 1998 itself.6. Learned Senior Counsel appearing for the petitioner alsosubmitted that disciplinary proceedings initiated against him, inP.R.No.1/97 on the file of the Superintendent of Police, Salem endedin a punishment of reduction of time scale. But the same wasultimately held as incorrect. In such an event, the respondentsought to have promoted the petitioner as Sub Inspector of Police fromthe date on which his immediate junior came to be promoted, withoutreference to participation of the Range Promotion Board.7. Based on the averments made in the counter affidavit filed bythe Commissioner of Police, Salem City, the second respondent,Mr.Gopinathan, Learned Additional Government Pleader submitted thaton 8.8.98, the Director General of Police, in his memorandum inC.No.154645/NGB IV(3)/98 had directed all Range Promotion/CityPromotion Board for preparation of 'C' lists of Head Constables(Local) fit for promotion as Sub Inspectors of Police (Local) for theyear 1998 and further directed that promotion tests consisting ofWritten Test, Drill Test, Viva Voce were to be conducted forselection. However, on 9.10.98, Director General of Police alsoissued another memorandum and sent a Radio message instructing allRange DIG's of Police and Commissioner of Police that service rulesand government orders issued from time to time regardingconsideration of punishments and pendency of enquiries etc. forpromotion should be scrupulously followed.8. Placing reliance on the guidelines issued by the governmentin G.O.Ms.No.368, Personnel and Administrative Reforms Department,dated 18.10.93, Learned Counsel appearing for the respondents furthersubmitted that promotions were to be considered on the basis of theperformance of the officers coming under the zone of considerationand in cases, where specific charges have been framed or charge sheetis filed in criminal cases, promotion and appointment of such personscan be deferred till disciplinary proceedings are concluded. 9. As the petitioner was facing a disciplinary proceedings, hewas not permitted to participate in the Range Promotion Board. Onthe aspect of the other two Head Constables permitted to apepar inthe Range Promotion Board, he submitted that there cannot be anyequality, in exercise of discretion, contrary to the guidelines inG.O.Ms.No. 368, Personnel and Administrative Reforms Department,dated 18.10.93 and the subsequent orders issued from time to time.He further submitted that the petitioner was facing a charge underRule 3(b) of the Tamilnadu Police Subordinate Service Rules and was https://hcservices.ecourts.gov.in/hcservices/ placed under suspension on 29.11.96 for his gross negligence in dutyin having failed to collect and furnish information to the Inspectorof Police, Kondalampatti Circle, about the selling of illicit arrackby one Smt.Nachayee, which resulted in the death of two persons,after consuming illicit arrack sold by her on 28.11.96. Therefore,he submitted that there is no discrimination and violation of Article14 of the Constitution of India. For the above said reasons, heprayed for dismissal of the Writ Petition. 10. Heard the learned counsel appearing for the parties andperused the materials available on record.11. As per Clause 10 of the instructions of the Director Generalof Police, Chennai, dated 29.9.1998, the Commissioner of Police andRange Deputy Inspectors General of Police were directed to take carein completing the process by strictly following the rules, governmentorders and the verdicts of the Courts. Even though the abovememorandum issued by the Director General of Police, Chennai, doesnot specify that G.O.Ms.No. 368, Personnel and Administrative ReformsDepartment, dated 18.10.93 and other orders setting out theguidelines for preparation of a panel have to be followed that hedoes not mean that all the persons who have facing disciplinaryproceedings, under Rule 3(b) of the Tamilnadu Police SubordinateService Rules, were to be permitted to participate in the RangePromotion Board. It could be seen from the counter affidavit thatsubsequently, the Director General of Police, Madras has issuedfurther instructions in his memorandum C.No.154645/NGB IV(3)/98,dated 9.10.98 and also sent a wireless message stating that servicerules and government orders issued from time to time regarding theconsideration of punishments and pendency of enquiries for promotionshould be scrupulously followed in the matter of selection.Therefore, the contention of the learned Senior Counsel to the contracannot be countenanced. 12. On perusal of the orders dated 10.10.1998 of the DeputyInspector General of Police, Vellore Range, Vellore, permitting thetwo Head constables to appear in the Range Promotion Board, thisCourt is of the considered view that merely because two HeadConstables in the said region, facing disciplinary proceedings, werepermitted to participate in the Range Promotion Board in one Range,that cannot be cited as a precedent that all the Range PromotionBoards constituted for the purpose of selection to the post of SubInspectors of Police, should adopt the same procedure in the matterof selection, ignoring the guidelines. G.O.Ms.No. 368, Personnel andAdministrative Reforms Department, dated 18.10.93, specificallystated that in cases, where specific charges have framed and chargesheet is filed in criminal cases, promotion and appointment of suchpersons shall be deferred till the disciplinary proceedings areconcluded. It is not open to the petitioner to claim that he has https://hcservices.ecourts.gov.in/hcservices/ either a statutory or legal right to participate in the Rangepromotion Board, notwithstanding the pendency of disciplinaryproceedings initiated for the purpose of imposing a major penaltyunder rule 3(b) of the Tamilnadu Police Subordinate Service. 13. As regards the conduct of the petitioner, the counteraffidavit shows that the petitioner was placed under suspension on29.11.96 for his gross negligence in duty and having failed tocollect and furnish information to the Inspector General of Police,Kondalampatti Circle about the selling of illicit arrack by oneSmt.Nachayee, which resulted into the death of two persons afterconsuming illicit arrack sold by her on 28.11.96. The said conducteven warrants a major penalty. Having regard to the guidelinesissued by the government in the matter of consideration forpromotion, denial of the petitioner to participate in the RangePromotion Board for the year 1998 cannot be said as arbitrary orirrational.14. Having regard to the submission of the learned SeniorCounsel that the petitioner was subsequently exonerated of thecharges initiated in P.R.No.1/97 on the file of the Superintendent ofPolice, Salem District, it is open to the petitioner to approach thedepartmental authorities for promotion under the guidelines issued inG.O.Ms.No. 368, Personnel and Administrative Reforms Department,dated 18.10.93. It is open to the petitioner to make arepresentation if he so advised and on receipt of the representation,the respondents are directed to consider and pass appropriate ordersin accordance with law. 15. In view of the above, the Writ Petition is dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistraraesTo1. The Director General of Police,Chennai-4.2. The Commissioner of Police,Salem City, Salem-7. https://hcservices.ecourts.gov.in/hcservices/

3. The Chairman,City Promotion Board,Salem City and Dy. Commissioner of Police,Crime & Traffic,Salem City+ 1 cc to The Govt. Pleader, SR No.32545+ 1 cc to M/s. T.Ayngaraprabhu, SR No.32792W.P.No. 44650 of 2006KSK (CO)RH (18.11.09)