Madras High Court

V.Viswanathan vs The Director General Of Police on 2 August, 2021

                                                                                      W.P.No.19010 of 2017



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 02.08.2021

                                                          CORAM

                                   THE HONOURABLE MR.JUSTICE C.SARAVANAN

                                           Writ Petition No.19010 of 2017

                                            (Through Video Conferencing)

                      V.Viswanathan                                                 .. Petitioner

                                                             vs.

                      1.The Director General of Police,
                        Mylapore, Chennai - 2.

                      2. The Supreintendent of Police,
                         Cuddalore District.                                    .. Respondents




                                  Writ Petition filed under Article 226 of the Constitution of India
                      praying to issue a Writ of Certiorarified Mandamus, call for the records
                      pertaining to the impugned order in proceedings in C.No.A3/5848/2017
                      dated 13.03.2017 on the file of the second respondent and quash the same
                      and direct the first respondednt to include the petitioner's name at the
                      appropriate place in the select list for the year 1992-1993 along with his
                      batch mates in the year 1992-1993 and award all consequential service
                      benefits.

                      1/12
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                                                                                      W.P.No.19010 of 2017




                                    For Petitioner     : M/s.M.S.Soundararajan


                                    For Respondents : Mr.LSM.Hasan Fizal
                                                       Government Advocate.


                                                       ORDER

In this writ petition, the petitioner has challenged impugned

communication dated 13.3.2017 in proceeding bearing reference C.No.A3/

5848/2017 of the 2nd respondent. The petitioner has prayed for quashing

the impugned communication of the 2nd respondent and for a consequential

direction to the 1st respondent to include the name of the petitioner and the

appropriate place along with his batch mates recruited for the year 1992-93

on 01.11.1995.

2. The petitioner had participated in the recruitment for the post of

Police Constable in the year 1992-93 and had cleared the exams. However,

he was not appointed due do his involvement in a crime in Cr.No.597 of

1991 before the Minsuruti Police Station. The petitioner was not charge

sheeted and the name of the petitioner was therefore deleted from from

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Cr.No.597 of 1991 before the Minsuruti Police Station.

3. Under these circumstances, the petitioner appears to have sent

a representation dated 21.06.2017 and later approached the Tamil Nadu

Administrative Tribunal in O.A.No.7319 of 1999. By an order dated

18.12.1999, the Tribunal directed the respondents to consider the

representation of the petitioner and pass appropriate orders on the merits.

4. The petitioner was thereafter issued with an appointment letter

dated 6.2.2002 and absorbed in service. The petitioner sent representations

to the respondents dated 21.06.2017 with a request to place him in seniority

along with this batchmates who appeared in the exam during 1992-1993.

Since the representation of the petitioner did not evoke any positive response

from the respondents, the petitioner approached this Court in W.P.No.37670

of 2016. The said writ petition was disposed with a direction to consider

and dispose the representation of the petitioner on merits.

5. By the impugned order dated 13.3.2017, the respondent has

informed the petitioner that the petitioner was selected in the year 1992-93

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over and above 10,000 vacancies. Since the case of the petitioner was

considered as a special case along with others a condition that his seniority

will be fixed at the bottom of 1997-98 batch Gr-II P.Cs, the petitioner

cannot claim any seniority with effect from 1.11.1995.

6. Learned counsel for the petitioner submits that the reasons

given in the impugned letter dated 13.03.1997 stating that the petitioner was

one among them 329 candidates who were given appointment in terms of

G.O.Ms.No.1339 Home (Pol.III) Department dated 01.10.1999 is incorrect.

He submits that the above notification was issued to candidates belonging to

other communities numbering in 329 as 376 posts reserved for SC/ST could

not be filled up due to non availability of SC/ST candidates by relaxing the

rules relating to age, communal rotation, sports quota and 30% reservation

for women as a one time measure.

7. Learned counsel for the petitioner submits that under a similar

circumstances, in the case of S.Sakthivel, HC 568, the respondent has fixed

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seniority along with the candidates were selected provisionally in the year

1992-1993 appointed on 01.11.1995 as per Rule 24(d) of TNPSS Rules vide

Memorandum dated 17.04.2017 bearing reference C.No.153329/Rect, 1 (2)

/2017 and concluded that since S.Sakthivel, HC 568, was appointed as Gr.II

PC pursuant to selection in the year 1992-93.

8. The learned counsel further submits that even as per the counter

filed by the respondents it is admitted that the petitioner was not one among

the 329 candidates who were accommodated as a one time measure. He

relied on the decision of the Hon'ble Supreme Court in the State of

Haryana vs. Dinesh Kumar, (2008) 3 SCC 222, wherein it was held as

follows:-

“33.In the result, the civil appeal arising out of SLP (C) No. 1840 of 2007 is dismissed, while the civil appeal arising out of SLP (C) No. 14939 of 2007 is allowed. The judgment of the High Court dated 22-9-2005, impugned in the said appeal, is set aside and the respondents concerned are directed to take steps to issue appointment letters to the appellants in the said appeals subject to fulfilment of other conditions by them. It is also made

clear that the appellants will be deemed to have been appointed as Constable-Drivers with effect from the date persons lower in merit to them were appointed. However, while they will be entitled to the notional benefits of such

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continuous appointment and they will be entitled to salary only from the date of this judgment on the basis of such notional benefits. “

9. Heard the learned counsel for the petitioners and the learned

Government Advocate for the respondents.

10. Defending the impugned order of the 2nd respondent, the

learned Government Advocate for the respondents submits that the

appointment of the petitioner was in terms of G.O.Ms.No.1339 dated

01.10.1999 and that the petitioner's appointment was considered as a special

case. He submits that in terms of the aforesaid Government order the

petitioner cannot claim any seniority along with his batch mates. He further

submits that in the appointment order itself, it was mentioned that the

candidates who were appointed pursuant to G.O.Ms.No.1339 Home

(Pol.III) Department dated 01.10.1999 was by relaxing the age, rule as a

one time measure which has been concealed by the petitioner in the

affidavit.

11. Heard the learned counsel for the petitioner and the learned

Government Advocate for the respondents. I have perused the impugned

communication dated 13.03.2017 of the 2nd respondent and the appointment

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order dated 06.02.2002 bearing Reg.m/1160/02 issued to the petitioner.

12. The said appointment order of the Commandant, Tamil Nadu

Special Police, XI Battalion, Rajapalayam does not state that the petitioner's

appointment was in terms of G.O.Ms.No.1339 Home (Pol.III) Department

dated 01.10.1999. Therefore, the restrictions placed in the said

G.O.Ms.No.1339 cannot be imposed on the petitioner.

13. This is the case where the petitioner had successfully cleared

all the exams in the recruitment for the year 1992-1993, but was not selected

on account of his name in Cr.No.597 of 1991 before the Minsruti Police

Station. However, later, petitioner's name was dropped from Cr.No.597 of

1991 and was not charge sheeted. Thereafter, the petitioner was

appointed, pursuant to a direction dated 18.12.1999 of the Tamil Nadu

Administrative Tribunal, Chennai in O.A.No.7319 of 1999. Thus, the

reasons given in the impugned communication is not applicable to the

petitioner.

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14. That apart, in the case of S.Sakthivel, Head Constable No.568,

Armed Reserve, Tiruvannamalai District, whose name was not included in

the selection list to the post of Gr.III Police Constable in the year 1992-1993

due to his eyes are unfit due to defective vision, the seniority was fixed along

with his seniority shall be fixed with the candidates who were provisionally

selected in the year 1992-1993 and appointed on 01.11.1995 as per Rule

24(d) of TNPSS Rules.

15. The said Sakthivel had filed W.P.No.11324 of 1993 before

this Court. By an order dated 24.02.2000, the Court directed the

respondents for re-medical examination. The Medical Board in their letter

dated 21.03.2001 later stated that the said Sakthivel was found to be

medically fit for the post of Gr.II P.C. On such receipt of the same, the

Director General of Police, Tamil Nadu, Chennai issued necessary

appointment orders to the said Sakthivel. Thereafter, the said Sakthivel

filed W.P.No.37880 of 2016 to direct the 1st respondent to consider the

representation dated 26.09.2016 to include the said Sakthivel name at the

appropriate place in the selection list of Police Constable of the year 1992-

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1993. The said writ petition was disposed on 01.11.2016 and directed the

respondents to consider the representation of the said Sakthivel. The

memorandum of the 1st respondent dated 17.04.2017 reads as follows:-

“ As the petitioner was appointed as Gr.II PC pursuant to their selection for the year 1992-1993, he is entitled to count his seniority in the post of Gr.II PC from 1992-

1993 from the date on which the candidates selected for the year 1992-1993 was appointed and sent for basic training (i.e.) w.e.f. 01.11.1995. Hence the request of Tr.S.Sakthivel, HC 568, Armed Reserve, Thiruvannamalai District seeking seniority on par with candidates selected for the year 1992-1993 is considered and his senioritty shall be fixed with the candidates who were provisionally selected in the year 1992-1993 and appointed on 01.11.1995 as per rule 24(d) of TNPSS Rules.”

16. In the State of Haryana vs. Dinesh Kumar, (2008) 3 SCC

222, wherein it was held that the appellants will be deemed to have been

appointed as Constable-Drivers with effect from the date persons lower in

merit to them were appointed. However, while they will be entitled to the

notional benefits of such continuous appointment and they will be entitled

to salary only from the date of this judgment on the basis of such notional

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benefits.

17 . This view was followed by this Court, by an order of Division

Bench of this Court in The Secretary to Government, Home (Police 3)

Department, Secretariat, Chennai vs. R.Madhan, W.A.No.211 of 2009

vide order dated 21.04.2009 in para Nos.7 & 8 of the above said Judgment.