Madras High Court
K.Sreedevan vs The Secretary To Government on 13 September, 2022
W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
K.Sreedevan ... Petitioner
in W.P.No.19237 of 2017
E.Selvam ... Petitioner
in W.P.No.19238 of 2017
-vs-
1. The Secretary to Government
Home Police Department
Fort St.George
Chennai - 600 009
2. The Director General of Police
Tamilnadu, Chennai - 4
3. The Addl. Director General of Police
Kilpauk, Chennai - 10
4. The Commandant
Tamil Nadu Special Police IX Battalion
Manimutharu
Tirunelveli District .. Respondents
in W.P.No.19237 of 2022
1. The Secretary to Government
Home Police Department
Fort St.George
Chennai - 600 009
https://www.mhc.tn.gov.in/judis
W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
2. The Director General of Police
Tamilnadu, Chennai - 4
3. The Addl. Director General of Police
Kilpauk, Chennai - 10
4. The Commandant
Tamil Nadu Special Police
Battalion II, F Company
Avadi - 62 ... Respondents
in W.P.No.19238 of 2022
Prayer in W.P.No.19237 of 2017 : Writ Petition filed Under Article 226
of the Constitution of India praying for issuance of Writ of Certiorarified
Mandamus, to call for the records of the respondents in connection with
the impugned order passed by the 2nd respondent in
R.C.No.172517/Rec.II(1)/2017 dated 27.04.2017 quash the same and
further direct the respondent to appoint the petitioner as SI (Taluk) by
transfer/by recruitment by transfer from Tamilnadu Special Police
Battalion within a reasonable time.
Prayer in W.P.No.19238 of 2017 : Writ Petition filed Under Article 226
of the Constitution of India praying for issuance of Writ of Certiorarified
Mandamus, to call for the records of the respondents in connection with
the impugned order passed by the 2nd respondent in
R.C.No.1718957/Rec.II(1)/2016 dated 27.04.2017 quash the same and
further direct the respondent to appoint the petitioner as SI (Taluk) by
transfer/by recruitment by transfer from Tamilnadu Special Police
Battalion within a reasonable time.
https://www.mhc.tn.gov.in/judis
W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
For Petitioner : Mr.T.Dharani
[ in both W.Ps.]
For Respondents : Mr.B.Vijay
[ in both W.Ps.] Additional Government Pleader
COMMON ORDER
The writ petitioners were initially recruited as Grade II Police
Constables and subsequently promoted as Sub-Inspectors of Police in
Category III during the year 2008.
2. The petitioners state that they are entitled for conversion from
Sub-Inspector of Police-TSP IX Battalion to Law and Order category as
per the Government Policy. The cases of similarly placed persons
working in the cadre of Sub-Inspectors were considered positively by the
respondents and now they are serving as Sub-Inspectors in the Law and
Order category and the cases of the writ petitioners were not considered
merely on the ground that they have crossed the age of 40 years.
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
3. The learned counsel for the petitioners contended that the
respondents have considered the persons, who have crossed the age of 40
years and granted conversion to the Law and Order category. On several
occasions such orders were passed by the Government and many such
persons are now working in the Law and Order category.
4. The learned Additional Government Pleader appearing on
behalf of the respondents objected the said contention by stating that the
terms and conditions stipulated in the Government Orders are to be
complied with for conversion of the Sub-Inspector-TSP to Sub-Inspector
(Taluk). Such terms and conditions if not complied with, then those cases
were not to be considered for conversion. The learned Additional
Government Pleader relied on the counter affidavit filed by the
respondents and stated that five conditions are to be complied with,
which are fixed as eligibility criteria for appointment as Sub-Inspector
(Taluk) falling under Law and Order category.
(1) Must be a graduate.
(2) Should not have completed 40 years of age
(3) Should have put in five years of service as Sub-Inspector of
Police (Armed Reserve/Tamil Nadu Special Police)
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
(4) Who have unblemished record of service
(5) Eligibility, selection, training, internal assessment etc.,
5. It is contended that the writ petitioners have completed the age
of 40 years. Therefore, the writ petitioners were not considered for
conversion to the Law and Order category.
6. It is contended by the respondents that cut off date has been
fixed for transfer of Sub-Inspectors (AR/TSP) recruited for the year has
been fixed as 01.07.2013 as per Government Order in G.O. Ms. No.
1598, Home Department dated 05.11.1997. Therefore, the second
respondent, viz., Director General of Police called for the details of the
eligible Sub-Inspectors of Police, Tamil Nadu Armed Reserve for
conversion to the Sub-Inspects of Police (Taluk) by transfer vide memo
dated 02.03.2016. The writ petitioners have not fulfilled the condition of
40 years of age.
7. The learned counsel for the writ petitioners relied on the
judgment of the Division Bench of this Court dated 13.09.2017 passed in
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
W.A. No. 1186 of 2017, wherein the following observations are made:-
"24. Material on record further discloses that, even
the Director General of Police, Government of Tamil Nadu,
has thought if fit not to initiate disciplinary proceedings, for
any alleged misconduct, pending disposal of the criminal
case. On the other hand, it is the categorical admission that
disciplinary proceedings would be deferred till the
conclusion of criminal case, which decision of the authority
only indicates that other than the criminal case registered
against him, respondent has not committed any serious
misconduct, in the discharge of his duties.
25. As per the version of Mr.V.Jayaprakash
Narayanan, learned Special Government Pleader, only one
witness, PW1 alone has to be cross examined. Even taking
for granted that the respondent is transferred to any one of
the Taluk Police, in the State of Tamil Nadu, we are of the
view that there would not be any impediment in the trial, as
examination of all the witnesses is almost over. No doubt,
the respondent has been charged under Section 406 and
420 IPC, but as per the law of jurisprudence, until a person
found guilty, he is presumed to be innocent.
26. Unblemished record of service, may be one of the
factors to be considered, for transferring persons from
Tamil Nadu Special Police to local police, as one time
measure, but on the facts and circumstances of this case, we
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
have to consider as to whether, the gravity of the offence,
say for instance, murder, rape, and such other heinous
offences, whether the offence is against the State, or inter se
between private parties, whether the same are in the stage
of accusation or attained finality. Needless to state that on
the facts and circumstances of this case, the department has
not even chosen to suspend the respondent."
8. Relying on the observation made by the Division Bench of this
Court, the learned counsel for the petitioners contended that even the
Sub-Inspectors faced criminal case, were granted conversion to the Law
and Order category. The over aged persons were also granted the benefit
of conversion to the Law and Order category. While so, the case of the
writ petitioners are to be considered.
9. In reply, learned Additional Government Pleader drew the
attention of this Court with reference to the observations made by the
Division Bench of this Court, where the facts and circumstances of that
case is different for granting the relief. The principles were not diluted or
set aside by the Division Bench in the case cited supra. In the case relied
on by the petitioners, the disciplinary proceedings are deferred till the
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
conclusion of the criminal case, and the writ petitioner therein was not
even placed under suspension. Considering the peculiar facts and
circumstances of that case, the Division Bench of this Court granted the
relief and therefore, the said judgment cannot be considered as a
precedent for the purpose of complying with the mandatory terms and
conditions stipulated for conversion of Sub-Inspector Armed Reserve to
Sub-Inspector Law and Order category.
10. It is not in dispute that the Government Orders contemplates
criteria for conversion to Law and Order category. Accordingly, a person
should not have exceeded the age of 40 years and must have
unblemished record of service.
11. Post or status, at no circumstances, be claimed as a matter of
right by the public servants. It cannot be the choice. Conversion from
one wing to another wing of the Department on similar service
conditions could not cause any infringement of service rights of the
public servants. Certain wings are considered as sensitive in Police
Department and women and men of integrity with additional skills are
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
engaged to perform such sensitive duties. Law and Order Wing is an
important wing in the Police Department, dealing with the public
directly. Thus, women and men of skills and additional ability are
considered for conversion and posting in Law and Order category.
Conversion from one wing to another wing is an additional avenue
provided to the employees and such conversion would not confer any
right. While undertaking the process of conversion, the Competent
Authorities are bound to follow the eligibility criteria, so as to ensure
that women and men of ability are posted in Law and Order category.
The assessment of suitability and eligibility must be made in accordance
with the guidelines issued by the Government in this regard and such an
assessment made in accordance with the guidelines by the Competent
Authority cannot be interfered with by the High Court in a routine
manner. If at all the conversion to Law and Order category is tainted with
the allegations of mala fides or an act of unfairness is found, then alone,
the Court would interfere, but not otherwise. It is within the domain of
the Competent Authorities to assess the suitability and eligibility of the
Police personnel for conversion to Law and Order category. It is an
administrative propagative, which cannot be interfered with in normal
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
circumstances. The High Court would not interfere with the routine
administration of Police Department and other Government Departments.
The Authorities Competent are the best persons to assess the ability and
suitability of the Police Personnel for the purpose of grant of conversion
to the Law and Order category. Personal assessment, working ability,
talent etc., are the subjective satisfaction of the Competent Authorities,
and the power in this regard are expected to be exercised in accordance
with the guidelines issued by the Government. The Government
prescribed certain norms for the purpose of conversion. It is not in
dispute that the norms contemplated are that the Police Personnel must
be a graduate, should not have completed 40 years of age and should
have put in 5 years of service and have unblemished record of service.
That apart, eligibility, selection, training, internal assessment etc., are
also to be considered for the purpose of conversion of Police personnel
to Law and Order category.
12. Service Conditions stipulated for the posts of Sub-Inspector of
Police, Armed Reserve and Sub-Inspector of Police (Taluk) are one and
the same. Both the posts are carrying the identical scale of pay. Thus, the
service conditions are one and the same and in the event of conversion,
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
there is no additional service benefits are provided. This exactly is the
reason why, this Court formed an opinion that posts or status can never
be claimed as a matter of right. The principles in this regard are settled
by the Hon'ble Supreme Court of India in E.P.Royappa's case. Since the
posts are interchangeable and certain additional criteria are prescribed
for conversion to Law and Order category to maintain the efficiency in
Police Administration, the assessment of ability and suitability to be
made by the Competent Authorities cannot be interfered with by the
High Court in a writ proceedings. In the event of any such interference, it
will cause an adverse effect in maintaining the efficiency level in Police
administration, more specifically, in Law and Order category.
13. The Police Personnel posted in Law and Order category have
more responsibility and accountability. They have to exercise the
Statutory powers directly towards the public at large and therefore,
additional ability and talent is certainly essential. That exactly is the
reason why, the Government thought fit and prescribed certain additional
criteria for the purpose of conversion of Armed Reserve Police Personnel
to Law and Order category. Since there is no change of service
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
conditions, the conversion cannot be claimed as an absolute right.
14. Regarding the assessment of suitability and eligibility, the
Honourable Supreme Court of India in the case of Commissioner of
Police Vs. V.S.Rajkumar by judgment dated 25.08.2021 in C.A.No.4960
of 2021, held as follows:
"Public service - like any other, pre-supposes that the
state 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."
15. Thus, the assessment of suitability and eligibility are the
prerogative of the Competent Authorities, which cannot be interfered
with by the High Court, while exercising the powers of judicial review
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
under Article 226 of the Constitution of India. Such an interference may
be required, if the power is exercised in an unfair manner or the
assessment is tainted with mala fides or Favouritism and Nepotism.
16. It is brought to the notice of this Court by the learned counsel
for the petitioners that the Police Department has violated the guidelines
and granted conversion in favour of some Police Personnel and therefore,
the case of the writ petitioners are to be considered. Illegality cannot be a
ground to claim equality. If at all any error or improper assessment has
been made in violation of the Government guidelines, the same cannot
be considered as a precedent nor such erroneous or irregular orders can
be allowed to continue in perpetuity. Under all circumstances, the
guidelines for conversion is to be scrupulously followed by the
Competent Authorities. If at all certain violations are noticed on earlier
occasions, such violations cannot be repeated nor any other persons can
claim the said violation as a matter of right. The Article 14 of Indian
Constitution is a positive concept and cannot be implemented in
negativity. Any irregularity or illegality or improper selections cannot be
followed as precedent, so as to allow the illegality or irregularity to
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
continue in perpetuity. Thus, the Courts are bound to examine the facts
independently with reference to the claim for conversion by the Police
Personnel. It is needless to state that the Competent Authorities of the
Police Department, while calling for the names of the eligible persons for
conversion from Armed Reserve to Law and Order category have to
adopt a transparent procedure and bound to follow the eligibility criteria
scrupulously and the assessment of suitability are to be made strictly in
accordance with Service Records and other norms fixed by the
Government for the purpose of conversion to Law and Order category.
17. High Discipline, Honesty and Integrity are the need of the hour
in Police Department, more specifically, in Law and Order wing. There
are large scale allegations from the public against the Police Personnel
working in the Law and Order category. There are common allegations
of collusion, receiving Mamul (Bribe) by the Police personnel in Police
Stations and in Law and Order wing. If the Police personnel with lack of
integrity is posted in Law and Order wing, then it will have a direct
implication on the maintenance of Law and Order in the society.
Effective control over the Law and Order wing by the Higher Police
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
Authorities are of paramount importance and is a Constitutional
mandate. The Fundamental Rights ensured under Part III of the
Constitution is to be protected by the Law and Order wing of the Police
Department as they are the law enforcing authority in the society.
18. In recent times, prevention of crimes are lacking. Prevention of
crimes in the society is far more important than developing an efficiency
in investigation after the commission of crime. Indian Constitution
enumerates protection of Fundamental Rights, including Right to Life
under Article 21 of the Constitution, which is an integral part of Article
21. Thus, the Law and Order wing of the Police Department plays a
pivotal role in protracting the Fundamental Rights of the citizen of our
great Nation. Therefore, Prevention of crime is far more important and is
a right of every citizen of this great Nation. The Police Department has to
thrive hard to ensure prevention of crimes in the society. This is the right
time to work out modalities for effective prevention of crimes in the
society. No doubt, investigation skills are also an important factor, but if
prevention is effectively made, then commission of crime and
investigation would be minimized.
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
19. Amongst the police personnel in the same category, no
personnel should feel that he is discriminated or unfairly dealt with by
the higher officials. Equality clause enunciated in the Constitution is to
be preserved amongst the uniformed personnel working in various
categories and more so, while providing an opportunity for conversion to
Law and Order Wing. Any kind of discrimination in this regard would
cause demorale amongst the uniformed personnel working in the same
category. Therefore, non discrimination is directly connected with the
maintenance of high discipline in the police force.
20. Any misplaced sympathy towards any police personnel in the
matter of conversion by any higher authority is directly in violation of
the Constitutional provisions as the same will result in unfairness and
would create heart burning issues amongst the other similarly placed
police personnel. Thus, the maintenance of equality, non-discrimination,
fairness in assessment of eligibility and suitability are of paramount
importance for the purpose of maintaining the Law and Order Wing
intact. Thus, the criteria fixed for conversion to Law and Order category
is an absolute necessity and such guidelines issued by the Government
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
are to be scrupulously followed, while undertaking the process of
conversion, more specifically, by the Director General of Police.
21. Regarding the violations of Government guidelines issued for
conversion by the Police Department on earlier occasions, the learned
Additional Government Pleader reiterated that the respondents are
following the eligibility criteria and assessment of suitability in
accordance with the guidelines and certain irregularities and illegalities if
at all occurred on earlier occasions, such orders will not be followed as a
precedent by the Police Department, while undertaking the process of
conversion to Law and Order Wing.
22. In this regard, it is relevant to rely on the judgment of the
Hon'ble Supreme Court of India in the case of Basawaraj & Anr. Vs.
Special Land Acquisition Officer reported in 2013 14 SCC 81, made an
observation that “it is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or fraud, even by
extending the wrong decisions made in other cases. The said provision
does not envisage negative equality but has only a positive aspect. Thus,
if some other similarly situated persons have been granted some relief/
benefit inadvertently or by mistake, such an order does not confer any
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
legal right on others to get the same relief as well. If a wrong is
committed in an earlier case, it cannot be perpetuated. Equality is a
trite, which cannot be claimed in illegality and therefore, cannot be
enforced by a citizen or court in a negative manner. If an illegality and
irregularity has been committed in favour of an individual or a group of
individuals or a wrong order has been passed by a Judicial forum,
others cannot invoke the jurisdiction of the higher or superior court for
repeating or multiplying the same irregularity or illegality or for passing
a similarly wrong order.”
23. The power of judicial review of the High Court under Article
226 of the Constitution of India is to ensure the processes, through
which, a decision is taken by the competent authorities in consonance
with the Statutes and Rules and the guidelines issued by the Government
in force, but not the decision itself. Therefore, in the absence of any
violation of the Rules or guidelines issued by the Government or
infringement of a right of an employee, the High Court would not issue
any direction to convert any police personnel from Armed Reserve to
Law and Order Wing. Such conversion is the administrative exercise to
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
be made by the competent authorities and interference in such exercise
by the High Court in a writ proceedings would cause serious
repercussion in the matter of maintenance of high discipline in police
force. In simple terms, High Court cannot sit as a selection authority or
an authority to assess the suitability and eligibility for the purpose of
effecting conversion of police personnel from Armed Reserve to Law
and Order Wing. High Court cannot usurp the powers of an expert body
consisting the competent Police authorities.
24. As far as the writ petitioners on hand are concerned, they have
crossed the age of 40 years and hence, the decision taken by the
competent authorities cannot be construed as perverse. Thus, the
rejection of the claim of the writ petitioners for conversion is in order
and there is no infirmity.
25. Considering the importance of the issue regarding the
conversion of Armed Reserve Police Personnel to Law and Order
category, this Court emphatically reiterate that the procedures as
contemplated and the eligibility criteria fixed including the suitability of
Police Personnel are to be assessed in the interest of the Law and Order
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
to be maintained in the society at large, which is the public interest and a
constitutional mandate to be performed by the Police Departments. Since
the Law and Order is having direct implication on the protection of
Fundamental Rights of the citizen under Part III of the Constitution of
India, the Director General of Police is directed to ensure that the women
and men of high discipline, integrity and honesty are converted to Law
and Order wing for the purpose of upholding the Constitutional
Directives.
26. In view of the facts and circumstances and the principles
elaborately considered, the relief as such sought for in the present writ
petitions cannot be granted and consequently, the writ petitions are
devoid of merits and stand dismissed. No costs. Connected
miscellaneous petitions are closed.
13.09.2022
Index : Yes
Speaking Order : Yes
gpa/sha
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W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
To
1. The Secretary to Government
Home Police Department
Fort St.George
Chennai - 600 009
2. The Director General of Police
Tamilnadu, Chennai - 4
3. The Addl. Director General of Police
Kilpauk, Chennai - 10
4. The Commandant
Tamil Nadu Special Police IX Battalion
Manimutharu
Tirunelveli District
5. The Commandant
Tamil Nadu Special Police
Battalion II, F Company
Avadi - 62
https://www.mhc.tn.gov.in/judis
W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
S.M.SUBRAMANIAM, J
gpa/sha
W.P. No. 19237 and 19238 of 2017 &
W.M.P.Nos.20749 & 20750 of 2017
13.09.2022
https://www.mhc.tn.gov.in/judis
