Madras High Court
C.Senthil Kumar vs The Director General Of Police on 1 December, 2022
W.P.No.12775 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12775 of 2019
C.Senthil Kumar ...Petitioner
Vs.
The Director General of Police,
Tamilnadu, Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4. ..Respondent
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, directing the respondent to pass orders on the
representation made by the petitioner at 28.01.2019 for fixation of seniority
of the petitioner along with those who were recruited in the year 1999 i.e.,
from 24.05.1999 within a reasonable time.
For Petitioner : Mr.K.Venkat Ramani
Senior Counsel
For Mr.M.Muthappan
For Respondent : Mr.S.Rajesh
Government Advocate
ORDER
The relief sought for in the present writ petition is for a direction to
direct the respondent to pass orders on the representation made by the
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W.P.No.12775 of 2019
petitioner on 28.01.2019 for fixation of seniority of the petitioner along with
those who were recruited in the year 1999 i.e., from 24.05.1999 within a
reasonable time.
2. The petitioner participated in the process of selection for
appointment to the post of Grade-II Police Constable. He came out
successful in all stages of selection and his name was included in the
provisional list. Though the petitioner was selected, he was not appointed
into service on the ground that a Criminal Case was pending against him in
connection with Crime No.584/1996 on the file of Otteri Police Station. The
petitioner paid a fine of Rs.100/- on 06.05.1996 for offence under Section 75
of Madras City Police Act pending on the file of V Metropolitan Magistrate
Court, Chennai. The petitioner states that he neither appeared before any
Court nor paid the fine amount.
3. The petitioner challenged his non-selection before the Tamil Nadu
Administrative Tribunal in O.A.No.7107 of 1999. The Tribunal directed the
Recruitment Board to issue an appointment order. The order was not
implemented and the petitioner filed Contempt Petition in C.P.No.72 of
2001, seeking for a direction to appoint him as Grade-II Police Constable
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W.P.No.12775 of 2019
with retrospective effect from 21.05.1999, the date on which, the other
candidates were selected along with him and commenced their training. The
Administrative Tribunal by an order dated 05.11.2001, issued a direction to
the Commissioner of Police to give posting order to the petitioner and send
the petitioner for training. Finally, the petitioner was issued with an
appointment order dated 21.09.2006 and he was sent for training. The
petitioner was subsequently transferred to Chennai City Police and upgraded
as Grade-I Police Constable in September 2016 and now he is working in
Taluk Police establishment.
4. The grievance of the writ petitioner is that he was selected in the
process of selection conducted in the year 1999. The individuals selected
along with the petitioner were sent for training on 24.05.1999. But, the
petitioner was sent for training after a delay of 4 ½ years and he was
appointed in service only on 21.09.2006. The delay occurred at the instance
of the Police Department despite the directions of the Court. Meanwhile, the
batch mates of the petitioner completed the services of about 4 years and
therefore, the petitioner sent a representation to fix his seniority along with
his batch mates.
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W.P.No.12775 of 2019
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5. The learned Senior counsel appearing on behalf of the petitioner
mainly contended that the petitioner was selected in the recruitment process
and he was not appointed on the ground that a Criminal Case was pending
against him. After verification of character and antecedents and regarding
the pendency of the Criminal Case, the respondent has not considered the
case of the writ petitioner. Thus, the petitioner approached the Tribunal and
there was a delay in implementing the orders of the Tribunal and the said
delay, which is a volition of the respondent cannot be a ground to deprive
the right of the petitioner from getting his seniority on par with his batch
mates.
6. In this regard, the learned Senior counsel appearing on behalf of the
petitioner referred the orders of the Hon'ble Supreme Court of India in the
case of State of Haryana & Ors Vs. Dinesh Kumar in Appeal (Civil)
No.84 of 2008 dated 08.01.2008 and the relevant paragraph is extracted
hereunder:
“31. In the result, the Civil Appeal arising out of SLP
(C).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 nd September 2005, impugned in the
said appeal, is set aside and the concerned respondents are
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W.P.No.12775 of 2019
directed to take steps to issue appointment letters to the
appellants in the said appeals subject to fulfillment 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 continuous appointment, they will be entitled
to salary only from the date of this judgment on the basis of
such notional benefits.”
7. This Court is of the considered opinion that the said orders passed
by the Hon'ble Supreme Court of India are with reference to the facts
established. However, in the case of Commissioner of Police vs. Raj
Kumar [2021 (9) Scale 713], the Hon'ble Supreme Court of India been held
as follows:~
“26. Courts exercising judicial review
cannot second guess the suitability of a
candidate for any public office or post. Absent
evidence of malice or mindlessness (to the
materials), or illegality by the public employer,
an intense scrutiny on why a candidate is
excluded as unsuitable renders the courts-
decision suspect to the charge of trespass into
executive power of determining suitability of an
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W.P.No.12775 of 2019
individual for appointment. This was emphasized
by this court, in M.V.Thimmaiah v. Union Public
Service Commission [(2008) 2 SCC 119] held as
follows:
“21. Now, comes the question
with regard to the selection of the
candidates. Normally, the
recommendations of the Selection
Committee cannot be challenged
except on the ground of mala fides
or serious violation of the statutory
rules. The courts cannot sit as an
Appellate Authority to examine the
recommendations of the Selection
Committee like the court of appeal.
This discretion has been given to
the Selection Committee only and
courts rarely sit as a court of
appeal to examine the selection of
the candidates nor is the business of
the court to examine each candidate
and record its opinion...
xxxxxxxxxxxxxxxx
30. We fail to
understand how the Tribunal can sit
as an Appellate Authority to call for
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W.P.No.12775 of 2019
the personal records and constitute
Selection Committee to undertake
this exercise. This power is not
given to the Tribunal and it should
be clearly understood that the
assessment of the Selection
Committee is not subject to appeal
either before the Tribunal or by the
courts. One has to give credit to the
Selection Committee for making
their assessment and it is not
subject to appeal. Taking the
overall view of ACRs of the
candidates, one may be held to be
very good and another may be held
to be good. If this type of
interference is permitted then it
would virtually amount that the
Tribunals and the High Courts have
started sitting as Selection
Committee or act as an Appellate
Authority over the selection.”
...
...
29. Public service ~ like any
other, pre~supposes that the state
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W.P.No.12775 of 2019
employer has an element of latitude
or choice on who should enter its
service. Norms, based on principles,
govern essential aspects such as
qualification, experience, age,
number of attempts permitted to a
candidate, etc. These, broadly
constitute eligibility conditions
required of each candidate or
applicant aspiring to enter public
service. Judicial review, under the
Constitution, is permissible to
ensure that those norms are fair and
reasonable, and applied fairly, in a
non~discriminatory manner.
However, suitability is entirely
different; the autonomy or choice of
the public employer, is greatest, as
long as the process of decision
making is neither illegal, unfair, or
lacking in bona fides.
30. The High Court's
approach, evident from its
observations about the youth and
age of the candidates, appears to
hint at the general acceptability of
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W.P.No.12775 of 2019
behaviour which involves petty
crime or misdemeanour. The
impugned order indicates a broad
view, that such misdemeanour
should not be taken seriously, given
the age of the youth and the rural
setting. This court is of opinion that
such generalizations, leading to
condonation of the offender's
conduct, should not enter the
judicial verdict and should be
avoided. Certain types of offences,
like molestation of women, or
trespass and beating up, assault,
causing hurt or grievous hurt, (with
or without use of weapons), of
victims, in rural settings, can also be
indicative of caste or
hierarchy~based behaviour. Each
case is to be scrutinized by the
concerned public employer, through
its designated officials~ more so, in
the case of recruitment for the police
force, who are under a duty to
maintain order, and tackle
lawlessness, since their ability to
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inspire public confidence is a
bulwark to society's security.”
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8. As far as the present writ petition is concerned, though the
petitioner came out successful in the process of selection, his eligibility and
suitability was questioned by the competent authority and accordingly, no
order of appointment was issued to the petitioner. The order of appointment
was issued only pursuant to the contempt petition filed and thereafter, the
petitioner was sent for training and appointed.
9. Therefore, this Court cannot form an opinion that there was an
administrative delay in issuing an order of appointment. The delay occurred
on account of the fact that during the verification of the character and
antecedent, the authorities found that a Criminal Case was registered against
the petitioner and thereafter, they found that the petitioner is not suitable
and accordingly, not issued the appointment order. The petitioner
approached the Tamil Nadu Administrative Tribunal and pursuant to the
directions issued by the Tribunal, he was appointed. Therefore, one cannot
form an opinion that petitioner's appointment was delayed at the instance of
the respondent.
10. The verification of character and antecedent is an important
factor. The assessment of suitability and eligibility is the prerogative of the
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Selection Committee. The decision of the competent Selection Committee is
final and if there was a delay on account of the fact that there was an
assessment, which took sometime since there was a Criminal Case registered
against the petitioner. Thus, this Court do not find any infirmity in respect of
the actions of the respondents in conducting thorough verification. The
selection is for Uniformed services. Verification of antecedents are of
paramount importance.
11. The learned Senior counsel appearing on behalf of the petitioner
further referred the order passed by this Court in W.P.No.33749 of 2016
dated 02.09.2021. However, this Court is of the considered opinion that the
facts cannot be compared. The facts placed before this Court in the present
case is to be taken into consideration. Thus, those judgments are of no avail
to the writ petitioner.
12. Question arises, whether a person, who is not even appointed into
the services can claim seniority for the period in which he was not in service.
If there was no appointment, question of fixing seniority would not arise at
all. The seniority is attached with the service of an employee and the
seniority can be fixed only, if a person is appointed into service.
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13. In the present case, the learned Senior Counsel appearing on
behalf of the petitioner contended that the petitioner was selected and there
was a delay in issuing the order of appointment. The delay occurred due to
verification of character and antecedents, since a Criminal Case was
registered against the against the writ petitioner.
14. However, the fact remains that the petitioner was appointed only
in the year 2006 and he was not appointed with retrospective effect. When
the petitioner was not appointed retrospectively from the date on which his
batch mates were appointed, question of granting retrospective seniority
would not arise at all.
15. In view of the facts and circumstances, the claim of the writ
petitioner for retrospective appointment is untenable. That apart, the
petitioner had earlier approached the Tamil Nadu Administrative Tribunal
and his order of appointment was issued based on the order passed by the
Tribunal. The issues were settled long back. The Tribunal has not
considered the case of the petitioner for grant of retrospective appointment
on par with the batch mates of the writ petitioner or to grant seniority. When
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the Tribunal had not considered the case of the petitioner for retrospective
appointment and the petitioner was subsequently sent for training and
appointed, now after this length of time, the petitioner cannot claim seniority
with retrospective effect on par with his batch mates. During the relevant
point of time, he was not appointed and not even served in the Department.
Thus, the said period cannot be reckoned for the purpose of seniority.
16. Accordingly, the writ petition fails and stands dismissed. No costs.
01.12.2022
Index : Yes
Speaking order:Yes
kak
To
The Director General of Police,
Tamilnadu, Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4.
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W.P.No.12775 of 2019
S.M.SUBRAMANIAM, J.
kak
W.P.No.12775 of 2019
01.12.2022
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