High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.09.2007CORAM:THE HON'BLE MR.JUSTICE ELIPE DHARMA RAO&THE HON'BLE MR.JUSTICE S.TAMILVANANW.P.NOS.38792 & 38793 OF 2003 G.Rajamoney..Petitioner in W.P.38792/03S.Durairaj..Petitioner in W.P.38793/03Vs.1.The Registrar Tamil Nadu Administrative Tribunal Chennai – 1042.The State of Tamil Nadu represented by the Commissioner & Secretary to Government Home Department Madras – 93.The Tamil Nadu Public Service Commission represented by it's Secretary Government Estate Madras – 24.The Inspector General of Police Madras – 45.The Commissioner of Police Madras – 8..Respondents in W.P.38792/031.The Registrar Tamil Nadu Administrative Tribunal Chennai – 1042.The State of Tamil Nadu represented by the Commissioner & Secretary to Government Home Department Madras – 9 https://hcservices.ecourts.gov.in/hcservices/

3.The Tamil Nadu Public Service Commission represented by it's Secretary Government Estate Madras – 24.The Director General of Police Mylapore Madras – 4 5. S. NIJAMUDDIN6. S. MURUGASAMY7. M. MURUGESAN8. A. NARAYANAN9. R. SUBRAMANIAN10. A. BALASUBRAMANIAM11. K. MOHAN DORAISAMY12. V. PALANI13. MP SUDARAMOORTHY14. C. ILANGO15. T. KUMARASWAMY16. C. RAJAMANICKAM17. D. CHANDRABASU18. I. NIZIR AHAMED19. M. JOUN CHELLIAH20. K. RAJARATHINAM21. M. JAYABALU22. S. GIRI MURUGAN23. W. KALIAPPAN24. P. MURALI25. S. JAYAPANDIAN26. MD.SHAJAHAN27. C. VIVEKANANDAN28. V. SITHANNAN29. N. SWAMI DURAIVELU30. R. BALASUBRAMANIAN31. P. ILLANGOBAN32. T. BALASUBRAMANIAN33. R. CHANDRASEKARAN34. R. SATHYAVELU35. S. RAMAIAN36 S. MURUGANANDAM37. G. RAJENDRAN38. R. ENUGOPAL39. V. PANDI40. A. CHANDRASEKARAN41. K.N. SUDAKARAN42. K. NAGARAJAN43. V.G.PANNERSELVAM https://hcservices.ecourts.gov.in/hcservices/

44. C. RAJENDRAN45. G. KANNADASAN46. V. PANNERSELVAN47. A.K. DAYANIDHI48. P. KRISHNAMOORTHY49. L. MARCHTEN LEO50. V. PANCHATCHARAM51 T.N. VENKATESWARAN52. N. KALYANASUNDARAN53. G. BOOPATHI54. N. KRISHNAVELU55. P. RAMASAWAMY56. K.C. NANDAKUMAR57. V. RATHINASABAPATHY58. S. MANICKAM59. R. RAJAGOPALAN60. P.R. KHADER MOHIDEEN61. N.C. PALANISWAMY62. P.R. GOPAL63. M. SUESH KUMARA64. K. SURIYAPRAKASH REDDY65. N.R. JAYABALAN66. N. JOHN BOSE67. R. MUTHUSWAMY68. V. RADHAKRISHNAN69. A. BOSE.70. M. MANICKAM71 J. MOHAN RAJAGOP72. G. DINAKARAN73. M. GUNASEKARAN74. T. AMIRTHA KUMARA75. A. SELVARAJ Respondents in WP 38793/03Prayer in W.P.No.38792/2003: Writ petition under Article 226 of theConstitution of India praying to issue a writ of certiorarified mandamuscalling for the records pertaining to the order dated 12.12.2002 passed bythe first respondent in T.A.No.110/1990 (W.P.No.10718/1986); to quash thesame and consequently to direct respondents 2 to 4 to accord all servicebenefits like seniority, promotion, backwages and all other attendantservice benefits to the petitioner by declaring that the proviso to Rule25 of the Tamil Nadu Police Subordinate Service Rules as amended byG.O.Ms.No.767 Home (Police.III) dated 28.03.1985 as unconstitutional andvoid.Prayer in W.P.No.38793/2003: Writ petition under Article 226 of theConstitution of India praying to issue a writ of certiorarified mandamuscalling for the records pertaining to the order dated 12.12.2002 passed bythe first respondent in T.A.No.75/1992 (W.P.No.9048/1987); to quash thesame and consequently to direct respondents 2 to 4 to accord all service https://hcservices.ecourts.gov.in/hcservices/ benefits like seniority, promotion, backwages and all other attendantservice benefits to the petitioner by declaring that the proviso to Rule25 of the Tamil Nadu Police Subordinate Service Rules as amended byG.O.Ms.No.767 Home (Pol.III) dated 28.03.1985 as unconstitutional and void.For Petitioner in : Mr.M.Venkatachalapathy, SC for both W.Ps.: Mr.M.SriramFor Respondent 3: Mr.A.Arulin both W.Ps.:For RR2,4 & 5 in: Mr.K.Balakrishnan, AGP W.P.38792/03 & :R2 & R4 in :W.P.38793/03COMMON ORDER (Order of the court was delivered byJustice Elipe Dharma Rao) These two writ petitions are directed against the common order dated12.02.2002 passed by the Tamil Nadu Administrative Tribunal inT.A.Nos.110/1990 and 75/1992 respectively. The petitioner in each casewas selected as Sub-Inspector of Police by direct recruitment in the year1976. After selection, they underwent training in the Police TrainingCollege. Thereafter, each one of them were appointed as Sub-Inspector ofPolice in the Tamil Nadu State Police Subordinate Service. As per Rule25 of the Special Rules of Tamil Nadu State Police Subordinate ServiceRules as amended by G.O.Ms.No.3037, Home dated 25.08.1965, the seniorityof the directly recruited Sub-Inspectors of Police was fixed according tothe marks obtained by them in the Police Training College. As per themarks obtained, the petitioner in W.P.No.38792/2003 was assigned seniorityNo.17 and the petitioner in W.P.No.38793/2003 was assigned seniority No.13by the Chief Officer. The said Rule was amended in the year 1985 byvirtue of G.O.Ms.No.767 Home (Pol.III) dated 28.03.1985, under which aproviso was added viz., "Provided further that in respect of direct recruitment madein the year 1976 and 1979 to the posts of Sub-Inspectors ofPolice and the Reserve Sub-Inspectors of Police by the Tamil NaduPublic Service Commission, the seniority shall be fixed withreference to the Rank assigned by the Tamil Nadu Public ServiceCommission in the list of selected candidates communicated byit."Following the said Government Order, the seniority of the petitioners wasre-fixed by assigning rank Nos.195 and 132 respectively and proceedingswere issued communicating the same to the petitioners. The petitionerschallenged the said proceedings originally by way of filing writpetitions, which were later on transferred to the Tamil Nadu StateAdministrative Tribunal consequent to the formation of the same and re- https://hcservices.ecourts.gov.in/hcservices/ numbered as T.A.Nos.110/1990 and 75/1992 respectively. The Tribunaldismissed the transfer applications. Therefore, the petitioners arebefore this court in these two writ petitions challenging the common orderpassed by the Tribunal.2. Learned senior counsel appearing for the petitioners has contendedthat the seniority of the petitioners, which was settled even in the year1977, had been revised subsequent to the amendment made to section 25 ofthe Special Rules of Tamil Nadu State Police Subordinate Service Rules byvirtue of G.O.Ms.No.767 Home (Pol.III) dated 28.03.1985, which hasdeprived the petitioners of their vested right of promotion and thereforethe amendment cannot be given retrospective effect. Learned seniorcounsel also contended that the Tribunal, without adverting to the abovematerials available on record, had erroneously dismissed the transferapplications, which has caused considerable prejudice to the petitionersand therefore the amendment made to Rule 25 of the Special Rules by virtueof the said Government Order should be held to be illegal. 3. Learned counsel appearing for the respondents contended that thepost of Sub-Inspector of Police and Reserve Sub-Inspector of Police werebrought within the purview of the Tamil Nadu Public Service Commission;they selected candidates for appointment to the said posts in the years1976 and 1979; the seniority of the candidate was fixed with reference toRule 35(a) of the General Rules for the Tamil Nadu State & SubordinateServices; Tamil Nadu Public Service Commission addressed the Governmentto amend Rule 25 of the Special Rules for the Tamil Nadu PoliceSubordinate Service for introducing a provision in regard to fixation ofseniority on the basis of Rule 35(a) of the General Rules for the TamilNadu State and Subordinate Services with retrospective effect from1.9.1976; Government issued G.O.Ms.No.767 Home (Pol.III) dated 28.03.1985to amend Rule 25 of the Special Rules; on the basis of the said GovernmentOrder, a "C" list was prepared revising the seniority as per the secondproviso to Rule 25 of the Special Rules; on that basis, ranks wereassigned to the petitioners.4. We have perused the entire materials available on record. Rule 25of the Special Rules for Tamil Nadu Police Subordinate Service reads asfollows:"The seniority of a person in any class or category of theservice shall, unless he has been reduced to a lower rank as apunishment, be determined by the rank obtained by him in thelist of approved candidates drawn up by the AppointingAuthority, subject to the Rule of reservation where it applies.The date of commencement of his probation shall be the date onwhich he joins duty irrespective of his seniority unless he hasbeen appointed temporarily under Sub-Rule (d) of Rule 10 orSub-rule (b) of Rule 15 as the case may be. https://hcservices.ecourts.gov.in/hcservices/ Provided that, in the case of Sub-Inspectors (recruiteddirect) (Category 2 of class 1), the seniority shall be fixedon the basis of the marks obtained by them in the finalexamination in the Police Training College, Vellore."This proviso is in existence from it's inception i.e., from 25.08.1965and on the basis of the said provisio, two recruitments were made by theService Commission in the years 1976 and 1979. As per 35(a) of the TamilNadu State and Subordinate Service Rules, the seniority of a person in aservice class or category or grade shall, unless he has been reduced to alower rank as a punishment, be determined by the rank obtained by him inthe list of approved candidates drawn up by the Tamil Nadu Public ServiceCommission or other appointing authority, as the case may be, subject torule of reservation where it applies. The date of commencement of hisprobation shall be the date on which he joins duty, irrespective of hisseniority. 5. From a perusal of Rule 25 of the Special Rules, it is seen thatthe seniority of a person shall be determined by the rank obtained by himin the list of approved candidates drawn up by the Tamil Nadu PublicService Commission or the appointing authority. The proviso to section25 also shows that the seniority shall be fixed on the basis of themarks obtained by them in the final examination in the Police TrainingCollege, Vellore. When Rule 25 of the Special Rules itself is veryclear as to the selection of candidates and fixation of their seniority,then, we fail to understand as to why the Tamil Nadu Public ServiceCommission addressed the Government to introduce a new provision and thattoo, for amending the Special Rules with retrospective effect i.e., from01.09.1976 onwards. When the Tamil Nadu Public Service Commissionaddressed the Government to introduce a proviso to the Special Rule withretrospective effect, it would have definitely known that by introducinga new proviso, the seniority of the candidates already recruited would getaffected. Even assuming for a moment without admitting that the TamilNadu Public Service Commission had not committed any error in addressingthe Government to introduce a proviso in the Special Rules with regard tofixation of seniority, even then, a duty is cast upon the Government to godeep into this aspect to find out whether the proposed amendment willhave any impact on the candidates already recruited by the Tamil NaduPublic Service Commission, especially when the Rule formulated in the year1965 is very clear and that Rule had been followed by the Tamil NaduPublic Service Commission for selecting candidates in the year 1976 and1979. 6. It is an admitted fact that after the selection of thepetitioners, their seniority was correctly fixed as per the Rule existingthen. But, subsequently, the same was altered based on the provisointroduced to Rule 25 by virtue of G.O.Ms.No.767 Home (Pol.III)Department dated 28.03.1985, which has given retrospective effect to theamendment. It is the common knowledge of everybody that any executive https://hcservices.ecourts.gov.in/hcservices/ order like the one in question viz. G.O.Ms.No.767, dated 28.3.1985 willoperate only prospectively and since by the said G.O., the proviso toRule 25 was inserted with retrospective effect, thus affecting the alreadyfixed seniority conferred and enjoyed by the petitioners all these years,it should be held void. It is not the case of the officials that theoriginal seniority of the petitioners itself was wrongly fixed and thesame was corrected by the subsequent orders. When the original senioritywas fixed legally and correctly as per the Rule existing on the date ofthe appointment of the petitioners, the same should not have been changedor altered, by way of a subsequent amendment to the Rule, givingretrospective effect to the same, particularly to the detriment of thealready conferred seniority of the employees, like the petitioners.7. In addition to that, the petitioners should have been given anopportunity to know why their seniority, which was settled even in theyear 1977, should be re-fixed pursuant to the amendment made by virtue ofG.O.Ms.No.767 Home (Pol.III) Department dated 28.03.1985 and theirobjection, if any, should have been considered. Instead of doing that,their seniority has been re-fixed after a period of nearly 9 years withoutany basis and a "C" list has been prepared by bringing down theirseniority. This is against principles of natural justice and theimpugned action of the respondents has caused considerable prejudice tothe petitioners. The Tribunal, without considering the facts andcircumstances of the cases in their proper perspective has arrived at anerroneous conclusion to dismiss the Applications filed by the petitioners,necessitating this Court to cause its interference into such an erroneousdecision of the Tribunal. Therefore, both these writ petitions areallowed, setting aside the common order passed by the Tribunal. Nocosts. vsl/RaoSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Commissioner & Secretary to Government of Tamil Nadu, Home Department Madras – 92.The Secretary, Tamil Nadu Public Service Commission Government Estate Madras – 23.The Inspector General of Police Madras – 4 https://hcservices.ecourts.gov.in/hcservices/

4.The Commissioner of Police Madras – 85.The Director General of Police Mylapore Madras – 4 +, One cc to Mr. M. Sriram, Advocate sR 56291ka (CO)SG 06/10/07Common order in W.P.Nos.38792and 38793 of 2003