Madras High Court
B.Subramanian vs The Secretary To Government on 6 July, 2022
W.P.No.3835 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.3835 of 2014
B.Subramanian ...Petitioner
Vs.
1.The Secretary to Government,
Home (Police V) Department,
Fort St.George, Chennai – 9.
2.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4.
3.The Superintendent of Police,
Trivellore District. ..Respondents
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the records of
the 2nd respondent in connection with the impugned order passed by him in
RC No.147537/NGBIII(2)/2012 dated 21.11.2012 and quash the same in so
far as the petitioner is concerned and further direct the respondents to
consider the claim of the petitioner for upgradation as Special Sub-Inspector
by taking into consideration the total service rendered by him from
11.1.1978 to 31.7.2009 and upgrade him as Special Sub-Inspector and grant
him all consequential service and monetary benefits.
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W.P.No.3835 of 2014
For Petitioner : Mr.K.Venkataramani
Senior Advocate
For Respondents : Mr.P.Kumaresan
[For R1 to R3] Additional Advocate General
Assisted by
Mrs.S.Anitha
Special Government Pleader
ORDER
The order of rejection dated 21.11.2012, rejecting the claim of the
writ petitioner for upgradation to the post of Special Sub-Inspector of Police
is under challenge in the present writ petition.
2. The petitioner was entered into the service as Grade-II Police
Constable in Chennai City Armed Reserve on 11.01.1978.
3. During the year 1984, he was transferred to Taluk Police. The
petitioner was upgraded as Grade-I Police Constable in the year 1984 with
effect from 31.07.1984 and further, upgraded as Head Constable with effect
from 01.08.1999. The petitioner reached the age of Superannuation and
retired from service on 31.07.2009.
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W.P.No.3835 of 2014
4. On 25.03.2010, the petitioner made a detailed representation to the
respondents to consider his entire services of more than 30 years and relax
the Norms in respect of upgradation as Special Sub-Inspector of Police and
accordingly, upgrade him as Special Sub-Inspector of Police. As there was
no response even after receiving the representation by the respondents, the
petitioner filed Writ Petition in W.P.No.19788 of 2012 and this Court
passed an order dated 26.07.2012, directing the respondents to consider the
claim made by the petitioner based on the Government orders. Pursuant to
the orders of the High Court, the representation was disposed of by rejecting
the claim of the writ petitioner in proceedings dated 21.11.2012.
Challenging the same, the petitioner is constrained to move the present writ
petition.
5. The learned Senior Counsel appearing on behalf of the writ
petitioner mainly contended that the petitioner has served more than 10
years in the Feeder category of Head Constable. He served as Head
Constable for more than 10 years. When the petitioner has served more than
10 years in the post of Head Constable, he is entitled for upgradation as per
the Government orders in force. The Government orders stipulates 10 years
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W.P.No.3835 of 2014
of service as Head Constable for grant of upgradation to the post of Special
Sub-Inspector of Police. However, the authorities have erroneously taken a
decision that the period of 10 years is to be reckoned from the crucial date,
which is perverse.
6. The learned Senior Counsel appearing on behalf of the writ
petitioner further contended that there is no concept of crucial date for
upgradation. No such crucial date has been contemplated under the scheme
of upgradation. While so, there is no reason to reject the case of the writ
petitioner since the petitioner had already been completed 10 years of
service in the post of Head Constable and thus, he is entitled for the relief of
upgradation to the post of Special Sub-Inspector of Police.
7. The learned Special Government Pleader appearing on behalf of
the respondents objected the said contentions by stating that up to the year
1992, the Police personnel were promoted to the next rank on seniority basis
as per the availability of vacancy and by conducting tests i.e., Senior
promotion Test and Junior Promotion Test. Thereafter, an upgradation
Scheme was introduced by the Government in G.O.Ms.No.1681, Home
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W.P.No.3835 of 2014
(Pol.V) Department dated 12.10.1992 in order to remove the stagnation of
promotion in the Constabulary rank. Under the Scheme 21,000 Grade-II
Police Constables and 2,700 Grade I Police Constables, who have put in
several years of service and not able to get even a single promotion to the
next rank as Grade I Police Constables were ordered to be upgraded without
conducting tests as Grade I Police Constables and Head Constables in a
phased manner, stretched over a period of 5 years with effect from 1992-
1993.
8. Under the upgradation Scheme in the second phase, the petitioner
was upgraded as Grade I Police Constable on 22.07.1994 and as per the
G.O.844, he was upgraded as Head Constable on 22.07.1999 on completion
of 5 years of service as Grade I Police Constable.
9. The Government in G.O.Ms.No.937, Home (Pol.V) Department
dated 21.07.1998 have ordered to upgrade the Head Constables, those who
had completed 10 years of service in the post of Head Constable and also
put in a total service of 25 years, as Special Sub-Inspector of Police. The
crucial date for consideration for upgradation as Special Sub Inspector of
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W.P.No.3835 of 2014
Police has been fixed as 1st June of every year. The Range Deputy Inspector
Generals of Police / Commissioners of Police has to prepare the list of
eligible persons as per the norms for upgradation as Special Sub Inspector
of Police as on 1st June of the year and sent it to Government through the
Director General of Police and the Government will issue orders for
upgradation as Special Sub Inspector of Police. The crucial date for the
upgradation of Special Sub Inspector of Police for the year 2009 was fixed
as 01.06.2009. At that time, he did not completed 10 years of service as
Head Constable. He completed 10 years of service as Head Constable only
on 21.07.2009. Thus, the petitioner was not eligible for upgradation as
Special Sub Inspector of Police for the year 2009 as per the Government
orders in G.O.(Ms).No.937, Home (Pol-III) Department, dated 21.07.1998,
which was in force at that point of time.
10. The judgments of this Court on the issue have been narrated in
the counter affidavit filed by the respondents, which reads as under:
“(8) Further, it is informed that the Hon'ble Madras
High Court/ Madurai Bench of Madras High Court have
dismissed the Writ Petitions and Writ Appeals filed by
petitioners seeking notional upgradation with retrospective
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W.P.No.3835 of 2014
effect and allowed the Writ Appeals filed by the State in favour
of Department are as follows:-
i. The Hon'ble Division Bench of Madurai Bench of
Madras High Court in its Common Order dated:
22.03.2017 in Review Application Nos.70 to 79, 81, 82
and 90 to 92 of 2015, and W.A.Nos.49 to 51, 635, 730
to 740, 774 to 784, 793 to 797, 800 to 830 and 849 to
851 of 2015 and Connected Miscellaneous Petitions,
has allowed the Review Applications and Writ Appeals
in favour of Department as follows:
“31. In the facts and circumstances of the
present case, in the light of Government Orders
operating the field and materials placed before us
by the learned Special Government Pleader, we
are of the categorical view that the writ
petitioners cannot claim 'deemed promotions' to
the post of Special Sub-Inspector of Police and
the attendant service and monetary benefits. We,
therefore, left with no other option but to
respectfully disagree with the decision rendered
by the earlier Division Bench of this Court in
similar batch of writ petitions.
32. We wish to point out that we passed the
common order dated 23.04.2015 in
WA.(MD).No.348 to 357 of 2015 batch of cases on
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W.P.No.3835 of 2014
the submission made by the learned counsel that
the issue involved is covered by the earlier
Division Bench decision dated 17.06.2013 made
in WA. (MD) No.1506 of 2011. The niceties of the
legal issues and the real import and purport of the
Government Orders were omitted to be brought to
our notice. We reiterate that it was only on the
ground and in this manner that several Police
Constables, most them retired from service long
back, reaped monetary benefits that was not
legitimately due to them under the Government
Orders concerned. In such circumstances, we
cannot blindfold ourselves by the earlier Division
Bench decision to allow the claim of the present
writ petitioners. We are thoroughly convinced in
the facts and circumstances of the case that the
Government has made out sustainable grounds
for reviewing our earlier common order dated
23.04.2015 in WA. (MD) No.348 to 357 of 2015.
In the result, while set aside the common
order, dated 28.11.2013 passed by the learned
single Judge in W.P. (MD) No.15078 of 2010, etc.
batch of writ petitions, we allow all the Review
Applications and the Writ Appeals filed by the
Government. There will be no order as to costs.
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W.P.No.3835 of 2014
Consequently, connected Miscellaneous Petitions
are also closed.”
ii. The Hon'ble Division Bench of Madras High Court in its Order
dated: 30.08.2019 in W.A.Nos.47 to 51 of 2014 and others batch
and W.A.(MD Nos.772 and others batch, have allowed the Writ
Appeals in favour of Department as follows:-
13. The policemen are claiming promotion as Grade
I Police Constable, Head Constable and Special Sub
Inspector of Police, immediately on completion of 10, 15
and 25 years of service. There was no indication in any of
the Government orders, more particularly in
G.O.Ms.No.15, Home(Pol.V) Department, dated
07.01.2010 to claim deemed upgradation or retrospective
upgradation. The policemen are interpreting the
Government orders as if there was a decision in their
favour to grant retrospective upgradation by counting the
entire service, right from the initial entry. The Government
made it very clear in the relevant orders referred to above
that in order to claim upgradation as Special Sub Inspector
of Police, policemen must have completed 10 years of
service in the rank of Head Constable. The policemen
wanted the Government orders to be interpreted in such a
way that upon completing a fixed period, they would get
upgradation as Grade I Police constable automatically and
thereafter, as Head Constable and ultimately as Special
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W.P.No.3835 of 2014
Sub Inspector of Police. No such indication is found in any
of the Government orders extracted above. We are
therefore of the view that the appellants are correct in their
contention that the writ Court committed a fundamental
error while interpreting the Government orders and the
same resulted in allowing the writ petitions filed by the
respondents.
14. We fully concur with the views expressed by the
Madurai Bench of this court in its order in R.A.(MD)
Nos.70 of 2015 etc. batch.
15. The intra court appeals filed by the State allowed. The
connected appeals filed by the policemen are dismissed.
iii. While on hearing a similar case on 20.12.2019 in W.A.No.3748
of 2019, the Hon'ble First Bench of High Court of Madras, took
notice of the fact that the Division Bench of High Court of Madras
in their orders dated
iv. 22.03.2017 in R.A.Nos.70 of 2015 and other batch took
different view than the earlier Division Bench order made in
W.A.(MD).Nos.1506 of 2011 and other batch dated 17.06.2013.
Hence, the Hon'ble First Bench of High Court of Madras decided
to refer the judgment to a Larger Bench for an authoritative
pronouncement. Accordingly, the Hon'ble First Bench framed the
following questions and referred to a larger bench.
(i) As to whether the judgement dated
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W.P.No.3835 of 2014
22.03.2017 in the case of V.Ramachandran
(delivered in favour of department), that has taken a
view contrary to the earlier judgement in V.Samy
(delivered in favour of petitioner) deserves to be
resolved by a Larger Bench, as directed conflict has
been noticed by the subsequent Division Bench on
the ground that the Government orders had been
misconstrued while delivering the earlier judgment.
(ii) Whether the law has been laid down
correctly in the case of V.Ramachandran(supra), or
in the earlier decision in V.Samy(supra).
v. Recently, the Larger Bench, Hon'ble High Court of Madras by
their order dated 04.02.2022 in W.A.No.3784 of 2019, etc. have
dismissed bunch of batch cases of similar Review Applications,
Writ Appeals and Writ Petitions filed by several petitioners on the
ground that as follows:
"We hold that the Division Bench in V.Samy case
did not lay down the law correctly and we uphold
the law laid down in V.Ramachandran case to the
extent that there is no deemed upgradation or
deemed promotion contemplated in the relevant
Government orders and the benefit of
upgradation/promotion to the next level can be
granted/claimed only on completion of the
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W.P.No.3835 of 2014
qualifying service in each level/rank as prescribed
in the relevant Government Orders. At the risk of
repetition, insofar as understanding the
expression "retrospective operation" is concerned,
we hold that The Government Orders operate
prospectively but it imposes/grants new results in
respect of a past event. In other words, the
Government Order operates forward but it looks
backward and in that it attaches new
consequences for the future to an event that took
place before the Government Order was issued. If
the Government Orders are understood in this
perspective, there is no need to get into the issue
of "retrospective operation. Thus, we are of the
view that the Division Bench while rendering the
judgment in V.Ramachandran case has dealt with
the Government orders in its proper perspective
and the judgment in V.Samy case is hereby
overruled''.
11. This Court is of the considered opinion that the Government
order issued in G.O.Ms.No.937 dated 21.07.1998 itself stipulates the crucial
date as 1st June of every year. When the crucial date has been contemplated
under the Government order for upgradation, the said date is to be
scrupulously followed. In the present case, as on the crucial date for the year
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W.P.No.3835 of 2014
i.e., 01.06.2009, the petitioner had not completed 10 years of service in the
post of Head Constable.
12. That apart, the upgradation is also to be construed as a promotion
to the higher post. The promotion rules were not strictly followed. On
account of the policy decision taken by the Government to remove the
stagnation of many Police personnel in the same post for several years,
while formulating the policy, the period of 10 years experience has been
fixed in the post of Head Constable and the list of eligible persons, who
have completed 10 years of service is to be prepared based on the crucial
date fixed in the Government order i.e., 1st June of every year. Therefore, the
crucial date being an important factor to be considered and for fixation of
eligibility, crucial date is vital.
13. The arguments advanced on behalf of the writ petitioner that
there is no crucial date fixed is incorrect and untenable.
14. The concept of crucial date is to ensure uniformity and equality in
the matter of upgradation, promotion, etc., For preparation of a panel or list
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W.P.No.3835 of 2014
of eligible candidates for grant of upgradation or for promotion, such crucial
date is an important factor to be taken into consideration for the purpose of
uniformity and to avoid discrimination in the matter of considering the
names of eligible persons. When the year wise panel or upgradation are
prepared, a crucial date plays an important role. The concept of crucial date
is implemented mainly on the ground that year wise panel is prepared or the
panel is prepared, whenever required in a particular year. This being the
factum, the importance of crucial date and the Government order issued in
G.O.Ms.No.937 contemplates crucial date for upgradation, the order of
rejection passed by the respondents are in consonance with the settled
principles and there is no infirmity as such.
15. Accordingly, the writ petition stands dismissed. No costs.
06.07.2022
Index : Yes
Speaking order:Yes
kak
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W.P.No.3835 of 2014
To
1.The Secretary to Government,
Home (Police V) Department,
Fort St.George, Chennai – 9.
2.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4.
3.The Superintendent of Police,
Trivellore District.
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W.P.No.3835 of 2014
S.M.SUBRAMANIAM, J.
kak
W.P.No.3835 of 2014
06.07.2022
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