Madras High Court
R.Antony Johnson Jayapaul vs State Of Tamil Nadu on 28 April, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2023
CORAM:
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD, J.
W.P.No.27042 of 2012
and
W.M.P.No.24680 of 2021
R.Antony Johnson Jayapaul,
Commandant Quarters,
TSP V Battalion Campus,
Sathyamurthy Nagar,
Avadi, Chennai - 600 062. ...Petitioner
Vs
1.State of Tamil Nadu,
rep. by Principal Secretary,
Home (Pol.1) Department,
Fort St.George, Chennai - 600 009.
2. Director General of Police,
Mylapore, Chennai - 600 004.
3. Additional Director General of Police (Admin),
Mylapore, Chennai - 600 004. ...Respondents
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Prayer: Writ Petition filed Under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, calling forthe records
and quashing the impugned order passed by the first respondent vide
Government Letter No.3/724/P.O.1/2017-3 dated 13.06.2017 rejecting the
grant of conversion to petitioner as DSP (Category) as not feasible of
compliance and consequently direct the respondents to grant conversion to the
petitioner as DSP (Category-1) with effect from the panel year 1996-97 by
which he was promoted as Assistant Commandant (Category-3) by sending
him for training at the Police Academy for 6 months followed by another
course of practical training for 6 months besides to work as DSP (Category-1)
in charge of a sub-division for one year by relaxing Rule 6(a), 10(b) and 10(c)
of the Special Rules for the Tamil Nadu Police Service for the purpose of
conferring the rank of Indial Police Service (IPS) on the petitioner within a
time frame.
(Prayer amended vide order dated 05.08.2019 made in
W.M.P.No.20039/2019 in W.P.No.27042 of 2012)
For Petitioner : Mr.K.Ravi Anantha Padmanabhan,
Senior Counsel,
for Mr.N.Santhosh kumar.
For Respondents : Mr.S.Silambanan,
Additional Advocate General,
Assisted by Mr.C.Selvaraj.
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ORDER
This writ petition is filed seeking to issue a writ of Certiorarified
Mandamus, calling for the records and quashing the impugned order passed by
the first respondent vide Government Letter No.3/724/P.O.1/2017-3 dated
13.06.2017 rejecting the grant of conversion of petitioner as DSP (Category) as
not feasible of compliance and consequently direct the respondents to grant
conversion to the petitioner as DSP (Category-1) with effect from the panel
year 1996-97 by which he was promoted as Assistant Commandant
(Category-3) by sending him for training at the Police Academy for 6 months
followed by another course of practical training for 6 months besides to work
as DSP (Category-1) in charge of a sub-division for one year by relaxing
Rule 6(a), 10(b) and 10(c) of the Special Rules for the Tamil Nadu Police
Service for the purpose of conferring the rank of Indial Police Service (IPS) on
the petitioner within a time frame.
2. The facts of the case in a nutshell:-
2.1. The petitioner was recruited as a Sub-Inspector of Police on
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28.09.1988 and completed the training on 10.07.1988. Thereafter, he
completed his probation as Sub-Inspector on 27.09.1988. He was allotted to the
Tamil Nadu Special Police, Category-3, as per the Special Rules for
Tamil Nadu Police Service. There are 3 categories in the Police Department,
which are as follows and the channel of promotion is also mentioned
hereunder:-
Category (1) Category (2) Category (3)
City Police Armed Reserve Special Police
1 SI - 60% by direct SI - 60% by direct SI - 60% by direct
recruitment recruitment recruitment
2 Inspector Inspector Inspector
3 Asst. Commissioner Deputy Assistant
of Police Superintendent of Commandant
Police
4 Additional Additional Deputy Commandant
Superintendent of Superintendent of
Police Police
5 Superintendent of Deputy Commandant
Police Commissioner
6 Joint Commissioner Nil Nil
7 Additional Nil Nil
Commissioner
8 Nil Nil
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2.2. According to Rule 10(b) of the Special Rules for Tamil Nadu Police
Service, a Police Officer, who has reached the rank of Deputy Superintendent
(Asst.Commandant), can be transferred to Category-1 (Law & Order Police),
provided, one who
"(i) possesses a good record of service;
(ii)has successfully completed the period of
probation as Dy.superintendent in Category-
3; and (iii) has passed the tests in the subjects
mentioned in Rule 6(a)"
2.3. As per G.O.Ms.No.130, dated 07.02.2000, the petitioner was
included in the panel for promotion as Deputy Superintendent of Police in
1996-97 but was actually promoted on 02.06.2000. The petitioner completed
his probation in the year 2002. On 15.09.2002 itself the petitioner has
represented to the senior officials that he may be transferred to Category-I as
Deputy Superintendent of Police, which was followed by several
representations.
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2.4. Despite this, the request of the petitioner was rejected on
28.07.2009. The petitioner made a detailed representation to the first
respondent on 08.09.2009 followed by a reminder on 03.06.2010.
2.5. The Rule 10 (b) and the proviso thereunder, which are extracted
below;
"10. Conditions for transfer of members ofthe
service from categories (2) and (3) to category (1)
under Class-II:
b) No Deputy Superintendents of Police, Category
(3), shall except in very special cases, be posted
or transferred as Deputy Superintendent of
Police, Category (1), unless he (i) possessess
good record of service, (ii) has completed the
prescribed period of probation as Deputy
Superintendent of Police, Category (3) and (iii)
had passed the tests in the subject mentioned in
rule 6(a).
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Provided that a Deputy Superintendent of Police,
Category (3) appointed by direct recruitment
shall have undergone a course of training
prescribed in rule 7 and a Deputy Superintendent
of Police, Category (3), appointed by transfer
from the category of Adjutant Inspector and
Inspector of the Tamil nadu Special Police
Suboridinate Service shall have undergone a
course of raining in Police Training College,
Vellore for six months and a course of practical
training under a Superintendent of Police for six
months, before consideration for transfer as
Deputy Superintendent of Police, Category(1),
under this rule."
2.6. As per the above Rules, for consideration of Deputy Superintendent
of Police Category II and Assistant Commandant for posting or transfer as
Deputy Superintendent of Police Category-I, it is the responsibility of the
respondents to consider the cases of eligible officers and depute them to the
prescribed trainings. However, the respondents did not undertake such an
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exercise and consequently the Rules have not been acted upon and just it
remained on paper.
2.7. The Government issued G.O.Ms.No.2121 (Home), dated
25.08.1969, by which the Government have also decided that the officers of
Armed Police Battalions and Deputy Superintendents of Police (Category-II)
may be made eligible for consideration for appointment to Indian Police
Service subject to the following conditions:-
"(i) that they have completed a minimum period of one year
in-charge of a Sub-Division.
For this purpose, Officers of Arms Police Battalions and
Deputy Superintendents of Police (Category 2) who are
graduates with exceptional record of service and are below
48 years will be transferred and posted as Deputy
Superintendents of Police (Category-1) in-charge of a Sub-
Division, the selection being made by a specially constituted
committee. The inter-se-seniority of such Officers transferred
as Deputy Superintendents of Police (Category 1) shall be
fixed with reference to their date of regular appointment to
Gazetted posts."
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2.8. Pursuant to the above Rules, the petitioner made representations to
constitute a Committee, as per G.O.Ms.No.48, dated 09.01.2012, to examine
his selection for transfer and post him as Deputy Superintendent of Police
category-1. The first respondent has examined his case carefully and decided to
accept the proposal of the second respondent. The G.O. further states that
otherwise he would be stagnating in his present post for 17 years and if the
transfer is given, he would qualify for conferring the rank of IPS, as the
petitioner was having many years of service at the time of filing the writ
petition.
2.9. The Constitution of a Committee as envisaged in paragraph 4 of the
G.O. The petitioner has to be sent for training at the Police Training College
and thereafter, he has to pass all tests under Rule 6(a). This has been the
procedure followed so far. In the case of one D.Krishnamurthy, Deputy
Superintendent of Police., this was the procedure that was followed as would
be evident from the Director General of Police's proceedings dated 21.09.1998.
Hence the petitioner has come forward with the present writ petition.
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3. The learned Senior Counsel appearing for the petitioner submitted that
the entire issue relates to the conferring the rank of IPS to the petitioner. There
are two modes to get the rank of IPS. The first one as the direct recruit IPS
through UPSC Exam. The second one is by way of conferring it on promotees,
known as Non-Cadre IPS. There are three categories in Police Department.
a. Category I = Law and Order/Local Police;
b. Category II = Armed Reserve (AR);
c. Category III = Tamil Nadu Police/Battalion
4. The Rules permit those employed in Category-II and Category-III also
to be conferred IPS rank subject to certain conditions. In category-I and II, the
nomenclature of the post-"DSP" is one and the same. In Category III/TSP, the
equivalent post of DSP is known as "Assistant Commandant". However, the
salary is one and the same for all three categories.
5. The learned Senior Counsel would further submit that the III Category
from which the petitioner seeks such conferment of IPS and upto the rank of
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Inspector of Police, Tamil Nadu Police Subordinate Service Rules shall apply.
But from the rank of DSP, Special Rules for Tamil Nadu Police Service, (for
short TNPSSR shall be made applicable. The post of DSP/Assistant
Commandant is the gazetted post and there is no dispute on this proposition.
Rule 10(b) of TNPSSR states w.r.t. "Conditions for transfer".
"a) xxx (not applicable to this case)
b) No Assistant Commandant or Assistant
Commandant (Small Arms) shall except in every
special cases be posted or transferred as Deputy
Superintendent of Police Category-I unless he:
"(i) he possesses a good record of service;
(ii) has completed the prescribed period of probation
as Assistant Commandant or Assistant Commandant
(Small Arms) and (iii) has passed the tests in the
subjects mentioned in Rule 5(a). For the first proviso
to sub-rule (b) the following proviso shall be
substituted. (c) Says "No Deputy Superintendent of
Police Category-II or Assistant Commandant or
Assistant Commandant (Small Arms) shall be posted
or transferred as Deputy Superintendent of Police
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Category. I under this Rule, unless he is below 48
years of age." d) Every Deputy Superintendent of of
Police Category-II or Assistant Commandant or
Assistant Commandant (Small Arms) posted or
transferred as DSP Category-I under this Rule shall
be in charge of a Police sub-division for a period of
not less thatn one year and after satisfactory
completion of this charge shall be confirmed on
Category-1 in their next available vacancy. e) The
selection of suitable officers belonging to Category-
II, III and IIIA under Class-II for being posted of
transferred under this Rule shall be made by
Government"
6. The learned Senior Counsel would further submit that from the above,
it is clear that those who are working in Category-II and III can also be made
eligible for being appointed to I.P.S. If found eligible, the interse seniority
shall only be in accordance with Rule 11 of the said Rules. It is significant to
point out that Rule 11 does not give authority to any officer or the government
to fix interse seniority in any other manner. In other words, the fixation of
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interse seniority cannot be at the whims and fancies of the Government or the
Appointing Authority. He relied on Rule 11 and the same is extracted
hereunder:-
"The interse seniority of Deputy
Superintendent of Police, Category-II and III
transferred or posted as DSP, Category-I in
accordance with Rule 10 shall be fixed with
reference to the date of their regular appointment to
gazetted posts."
7. The Government Order in G.O.Ms.No.2121, Home Department, dated
25.08.1969 communicated with Chief Office Endorsement
RC.No.6199/GA-1/dated 18.11.1969 which prescribed eligiblity criteria for
conferring Indian Police Service (IPS). The Government have also decided that
the Officers or Armed Police Battaloins and Deputy Superintendent of Police
(Category-II) may be made eligible for consideration for appointment of Indian
Police Service subject to the following condition;
"a. That they have completed a minimum
period of one year in-charge of a cub-division
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For this purpose, Officers of Armed Police Battalions
and Deputy Superintendents of Police (Category-II)
who are graduates with exceptional records of
service and are below 48 years of age will be
transferred and posted as Deputy Superintendent of
Police (Category-I) in-charge of a sub-division the
selection being made by a specially constituted
committee. The inter-seniority of such Officers
transferred as Deputy Superintendents of Police
(Category-I) shall be fixed with reference to their
date of regular appointment to Gazetted Posts."
8. The learned Senior Counsel would further submit that the petitioner
was an M.Com. first Class graduate even at the time of initial appointment and
in the application itself, he opted to join Category-III only. It is not that he was
sent to TSP/Category-III since he secured low marks, as wrongly contended by
the respondents.
"(i) That he should be below 48 years of age
(ii) He must have completed probation as Assistant Commandant
(iii)He must have impeccable service records."
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9. At that time, the age of the petitioner was 38 years six months and 28
days. Then in 1988, the petitioner was promoted as Sub-Inspector of Police and
in 1990 he was promoted as Inspector of Police in Category-III. On
25.10.2004, the petitioner again made a request for his conversion to
Category-I for being considered as IPS and subsequently, on 17.02.2005, a
representation was also made by the petitioner for the above. Then in the year
2005 the petitioner was promoted as the Commandant. Since 2005, the
petitioner has been stagnating in the same post without any promotion for the
past 18 years. Whereas, had he become Superintendent of Police in Law and
Order Department, he could have been promoted as DIG not later than the year
2015.
10. The learned Senior Counsel would further submit that on account of
repeated representations made by the petitioner, the Government of
Tamil Nadu passed G.O.Ms.48 Home Department stipulating the above
eligibility criteria besides observing that the persons like the petitioner would
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be stagnating for over 17 years unless he is promoted otherwise. Paragraphs 4
and 5 of the G.O.No.48 is reproduced below:-
" 4. The Government have examined the case
carefully and have decided to accept the proposal of
Director General of Police. Accordingly, the
Government orders that a Committee be constituted
with the following composition to examine the
selection of Thin Anthony Johnson Jeyapaul,
Commandant, Small Arms for transfer and posting
him as Deputy Superintendent of Police (Category-
1) as per the rule stipulated in GO. Ms.No. 2121.
Home dated 25.08.1969, so as to enable him for
consideration for Appointment to IPS:
1) DGP. Tamil Nadu
2)Additional General of Police and Member,
Tamil Nadu Uniformed Services Recruitment Board
3)Additional Director General of Police,
(Administration) Chennai.
5. A Report on the selection made may be submitted
to the Government within a period of one month to
pursue further.
Thus, the report ought to have been submitted on or
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before 09.02.2012. As Shown above. Nearly 5
representations were given by the Petitioner before
issuing this G.O. When he made the 1
Representation on 15.09.2002 after completing his
probation as Assistant Commandant, the Petitioner
was aged 38 years only. But the Department took
inspite of 5 reminders, nearly 10 years to issue the
G.O. for constituting the Committee. Again, the
Committee should have been constituted and the
report submitted within one Month, i.e., on or before
09.02.2012.”
11. As per G.O. the report of the Committee should be given on or before
09.02.2012. The petitioner has given nearly five representations even before
the issuance of G.O. When he made the first representation on 15.09.2002,
after completing his probation as Assistant Commandant, the petitioner was
aged 38 years only. Inspite of 5 reminders, the Department took nearly 10 years
to issue the G.O. for constituting the Committee. Again, the Committee should
have been constituted and the report submitted within one month, i.e., on or
before 09.02.2012. But, the Committee got constituted only on 05.04.2017
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after a lapse of 5 years from the date of first representation by the petitioner.
The Expert Committee appointed by the Government considered various Rule
positions and Government orders. As mentioned in proceedings dated
05.04.2017, the eligibility criteria for category-II and category-III shall be:-
"(i) appointed as DSP in category-I
(ii) made to work as DSP in Category-I/Law and
Order, as in charge of the sub-division under the
supervision SP for a year. (ii) made to undergo
training at Police Academy for 6 months. (iii) to
undergo practical training (6 months)."
12. At the end of the training, such appointed person shall pass out the
tests prescribed under Rule 6, such as IPC, special and local criminal laws,
Cr.P.C., Evidence Act, Medical Jurisprudence, scientific aids to criminal
investigation and so on. Therefore, while granting conversion to the eligible
person as DSP Category-I, such appointment are made by relaxing 6(a)
initially, so that they will be able to pass the test at the end of training period.
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This is the standard arrangement in the Department while recommending any
person for being appointed to I.P.S. For Mr.Manoharan and Mr.Krishnamurthy
also, such relaxation upon Rule 6 was given.
13. After analyzing the Rule position and the precedents in the cases of
D.Krishnamurthy, Manoharan, the Committee analyzed in paragraph 4 of the
proceedings dated 05.04.2017, the service credentials of the petitioner.
At the end, the committee states ''these ratings indicate that he possesses good
record of service." In paragraph 6, it is observed that the petitioner's age as on
09.01.2012 was below 48 years making him eligible for consideration for
conversion as DSP Category-I.
14. The learned Senior Counsel would further submit that the expert
committee observed as follows:-
"a) After carefully going through his service
records and conditions required for conversion to
category 1 under class II of Special Rules for the
Tamil Nadu Police Service, the committee
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recommends the appointment of Thiru
R. Antony Johnson Jeyapaul Commandant
(Category-III) formerly of Small Arms, Avadi now
TSP II Battalion, Veerapuram as Deputy
Superintendent of Police (Category-1) by relaxing
rule 6(a), 10(b) and 10 (c) of the said Rules. The
expert committee has also recommended for
relaxation of Rule 6(a), 10(b), 10(c) of the said Rules.
As stated above, Rule 6(a) deals with passing the
examination on certain law subjects. Rule 10(b) deals
with eligibility of the Assistant Commandant to get
conversion as DSP Category-I if he has a good
record of service, completed probation as Assistant
commandant and so on. Rule 10(c) only stipulates
that such candidates shall be below 48 years of age.
Therefore, the committee has clearly established the
eligibility of the petitioner for consideration to the
rank of IPS."
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15. The learned Senior Counsel would further submit that the expert
committee has gone a step further and exceeded its jurisdiction by thoroughly
fixing the interse seniority of the petitioner, while appointing as DSP
Category-I. The petitioner's name was included in the year 1996-97 panel for
the post of the Assistant Commandant which is the gazetted rank vide
G.O.No.130 dated 07.02.2000. Therefore, as per Rule 11 of the above Rules,
his interse seniority shall be fixed only from the date of his regular appointment
in the gazetted post. To support this hypothesis, it is to be mentioned here that
in para 8 of the above proceedings, the committee states that as per Rule 11(a)
the petitioner interse seniority shall be fixed in the year 2000 only but since his
batchmates were promoted as DSP's in the panel year 2012-13, his conversion
as DSP shall be placed at the year 2012-13.
16. In addition to the above rule position, the Department itself
considered the cases of one Mr.Manoharan, who was granted the interse
seniority from the date he was appointed to the equivalent rank of DSP. He was
in the rank of Deputy Commandant in Border Security Force, which is above
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the rank of DSP. When absorbed in Tamil Nadu Government Service, he was
posted as Additional SP, Special Security Group. The post of Additional SP is
also above the rank of DSP and from that post he was sent for training and
appointed as DSP (Category-I) from the date he was appointed in the gazetted
rank equivalent to DSP. Secondly, this precedent shows that an officer higher
in rank to that of DSP was appointed as DSP (Category-I) for such training
purposes, vide G.O.No.98 dated 17.08.2002. Thus, Mr.S.Manoharan was given
the interse seniority of the date from his regular appointment in gazetted post.
Similarly, one D.Krishna Murthy, who worked as DSP in Category-II/AR and
was given such conversion and appointment as DSP (Category-I) from the date
he was appointed as DSP (Category-II) by relaxing Rule 6(a) and Rule 10(a) of
the above rules, vide G.O.No.1263 dated 22.08.2007.
17. The learned Senior Counsel would further submit that from the above
two precedents, it can be safely concluded that the respondents had already
given the interse seniority while granting the conversion and appointing equal
rank persons from Category-II/Category-III to Category-I from the date they
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were appointed in equal cadre. The same yardstick has to be extended to the
petitioner.
18. The learned Senior Counsel would further submit that the copy of the
letter No.39030/GB(II),2008 dated 21.05.2009 issued by the second respondent
Director General of Police, Tamil Nadu to the first respondent Principal
Secretary to Government Home Department, wherein he has forwarded the
representation dated 08.05.2009 of Thiru.R.Antony Johnson Jayapal addressed
to the Government requesting him to depute to the Tamil Nadu Police
Academy to qualify and to be posted as Sub Divisional Officer, to enable him
to appointed by the Indian Police Service. Since he had 13 years more service
or otherwise, he would stagnate in the present rank for 14 years. The said letter
reads as under:-
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19. The learned Senior Counsel also drew the attention to the letter
No.69208/Police.1/2009-4, dated 12.01.2010, issued by the Deputy Secretary
to the Government, Home Department to the second respondent/Director
General of Police, wherein it has been stated that it has been proposed to
depute Thiru.R.Antony Johnson Jayapaul, Commandant, Small Arms for
training in law to Tamil Nadu Police Academy to qualify himself to be posted
as Sub Divisional Officer and thereby to get himself qualified for conversion as
Deputy Superintendent of Police, Category I and to IPS and the reply given by
the second respondent Director General of Police vide
RC.No.GB III (2)/7328/2010 dated 09.10.2010. The said letter reads as under:-
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20. The learned Senior Counsel also drew the attention of this Court to
the Tamil Nadu Special Police Manual Rule 7 which provides for training and
the same is extracted hereunder:-
"7. Training-(i) A probationer recruited direct as Deputy
Superintendent of Police, Category (1) Shall, during the
prescribed period of probation undergo-
(a) A course of training in the Police Training College at
Vellore for a period of not less than one year; and
(b) A course of practical training under a Superintendent of
Police thereafter.
These periods of training shall count for increments in the
time-scale of pay applicable to members of the service.
(ii) A probationer recruited direct as Deputy Superintendent of
Police, category (3) shall, during the prescribed period of
probation undergo.
(a) A course of training in the Police Training College at
Vellore for a period of not less than six months
(b) A course of training in the Tamil Nadu Special Police for a
period of not less than six months; and
(c) a course of practical training for not less than six months
under a Superintendent of Police thereafter."
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21. The respondents have filed their counter affidavit and two additional
counter affidavits.
22. The learned Additional Advocate General would submit that the
Government has issued G.O.Ms.No.48 dated 09.01.2012 to examine the
selection of the petitioner for conferring to Indian Police Service.
23. In the additional counter affidavit filed by the respondents dated
06.03.2018, it is stated that in pursuance of the above Government Orders, the
said committee have examined the selection of the writ petitioner for transfer
and posting as Deputy Superintendent of Police, (Category 1) and drawn its
proceedings in Rc.No.84083/GB.3(2)/2016, dated 05.04.2017. The observation
of the Committee is extracted hereunder:-
"a) carefully going through his service records and
conditions required for conversion to category 1 under
class II of Special Rules for the Tamil Nadu Police Service,
the committee recommends the appointment of
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Thiru R. Antony Johnson Jeyapaul, Commandant formerly
of Small Arms, Avadi now TSP III Battalion, Veerapuram
as Deputy Superintendent of Police (Category 1) by
relaxing rule 6(a), 10(b) and 10 (c) of the said Rules
b) Thiru R. Antony Johnson Jeyapaul became Assistant
Commandant in the year 2000. In case of conversion his
seniority will be fixed as Category 1 Deputy Superintendent
of Police in the year 2000 as per rule 11(a) of Special Rules
for Tamil Nadu Police Service. However, the Category 1
officer who were recruited in the year 1987 as
Sub-Inspector of Police along with
Thiru R. Antony Johnson Jeyapaul were higher in
recruitment merit list. He was allotted Category 3 at the
time of recruitment as he was low in merit list. He became
Assistant Commandant in the year 2000 while category 1
officers of same batch became DSP after 2007 in category
1. Therefore, it will not be fair to place him as DSP in
Category 1 with seniority of year 2000 after conversion.
Further his junior in 1987 batch who were appointed as
directly recruited Sub-Inspector of Police in TSP and who
opted for conversion to Taluk Police in the category of
Sub-Inspector of Police have been promoted as Deputy
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Superintendent of Police (Category 1) in the panel for the
year 2012-2013.
c) Therefore, the committee while recommending his case
for conversion to category-1 Deputy Superintendent of
Police, also recommends that in case of Government
approving the conversion to Category-1 Deputy
Superintendent of Police his seniority should not be fixed as
per rule 11 (a) of Special Rules for Tamil Nadu Police
Service placing him in the year 2000 rather his seniority
should be fixed with reference to his original seniority in
the category of Sub-Inspector of Police (TSP) (i.e) placing
him in the Deputy Superintendent of Police, (Category-1)
Panel of 2012-2013, above his junior included in the said
panel.”
24. The Committee report was forwarded to the Government for
consideration and the Government in their letter
No.31724/Police.1/2017-3, dated 13.06.2017 have stated that as per Rule 10 of
the Special Rules for the Tamil Nadu Police Service, members of service from
Category-2, 3 and 3A of Class-II (i.e) Deputy Superintendent of Police (Armed
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Reserve), Assistant Commandant in Tamil Nadu Special Police, Assistant
Commandant (Small Arms) shall be transferred to category-I of Class II
(i.e) Deputy Superintendent of Police, (Category-I). The petitioner was acting
as Commandant (i.e. in category of class-I) and there is no provision in the
Special Rules for the Tamil Nadu Police Service for the conversion of
Commandant to Deputy Superintendent of Police, Category-I.
25. The respondents have filed the additional counter affidavit dated
05.08.2018 to the amendment petition filed by the petitioner for amending the
existing prayer. During the year 1994, it was decided to conduct a
pre-induction course of training for six months to the eligible Sub-Inspector
of Police serving in Armed Reserve and Tamil Nadu Special Police for
considering the case for conversion as Sub Inspector of Police (Taluk). The
petitioner who was eligible for said the pre-induction course of training for
conversion from the Tamil Nadu Special Police to Taluk Sub Inspector of
Police, has expressed his unwillingness during the year 1994-1995 to attend the
said training. Considering the quick promotional prospects in the Tamil Nadu
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Special Police, the petitioner had opted to remain in the Tamil Nadu Special
Police, whereas, most of the batchmates of the petitioner have expressed their
willingness to attend the pre-induction course of training for conversion as
Sub-Inspector of Police (Taluk) and they were converted as Sub-Inspector of
Police (Taluk) during the year 1997.
26. At the time of conversion, the direct Sub-Inspectors of Police who
were appointed on 28.09.1987 and serving in the Tamil Nadu Special Police,
were promoted and mere serving as Inspector of Police from the year 1990
itself. The batchmates of the petitioner who were already promoted as Inspector
of Police in Tamil Nadu Special Police prior to the conversion process, have
foregone their seniority in the Tamil Nadu Special Police and they were
converted to Taluk Police as Sub-Inspector of Police. Since the petitioner had
expressed his unwillingness for conversion as Taluk Sub-Inspector of Police
and remained in the Tamil Nadu Special Police, he was elevated to the post of
Assistant Commandant, Deputy Commandant and Commandant on 02.06.2000,
19.08.2003 and 30.07.2005, respectively. Thus, the petitioner was elevated to
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the rank of Commandant in the Tamil Nadu Special Police during the year
2005 itself. But, the Sub-Inspectors of Police who were directly recruited in
Taluk Police on 28.09.1987 and higher in the recruitment merit list than the
petitioner have reached the zone of consideration for promotion to the rank of
Superintendent of Police only during the year 2018. Further, the Sub-Inspectors
of Police who were directly recruited in Armed Reserve on 28.09.1987 and
converted to Taluk Police and higher in recruitment merit list than the
petitioner are also still serving as Deputy Superintendent of Police (Category
1). Likewise, the batchmates converted from the Tamil Nadu Special Police to
Taluk Police as Sub-Inspector of Police are now serving only as Deputy
Superintendent of Police (Category-I). There is no provisions in the Special
Rules for the Tamil Nadu Police Service for the conversion of Commandant
(Class I, Category-I) to Deputy Superintendent of Police, (Class II, Category
1). As the petitioner is seeking conversion from the post of Commandant (Class
I, Category-I) to Deputy Superintendent of Police (Class II, Category-I), the
Government in their letter No.31724/Police-1/2017-3, dated 13.06.2017 have
duly considered the claim of the petitioner and ordered that the request of
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individual is not feasible of compliance as it is not in accordance with the
provisions of the Special Rules for the Tamil Nadu Police Service.
27. Heard the learned Senior Counsel appearing for the petitioner and the
learned Additional Advocate General appearing for the respondents and
perused the materials available on record.
28. In this case, the petitioner’s dream and ambition is to become an
I.P.S. Officer. There are two modes to get Indian Police Service (IPS). First one
as the Direct recruit I.P.S through U.P.S.C exam. The second one is by way of
conferring it on promotees, known as Non-Cadre I.P.S. There are three
categories in Police Department.
"Category I = Law and Order/Local Police;
Category II = Armed Reserve (AR);
Category III = Tamil Nadu Special Police/Battalion."
The petitioner was serving as Commandant in Tamil Nadu Special Police
and comes under category 3 mentioned above.
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29. The Tamil Nadu Special Police Manual Rule – 7 which deals with
training is extracted hereunder:-
"7. Training-(i) A probationer recruited direct as
Deputy Superintendent of Police, Category (1) Shall, during
the prescribed period of probation undergo-
(a) A course of training in the Police Training College at
Vellore for a period of not less than one year; and
(b) A course of practical training under a Superintendent of
Police thereafter.
These periods of training shall count for increments in the
time-scale of pay applicable to members of the service.
(ii) A probationer recruited direct as Deputy Superintendent
of Police, category (3) shall, during the prescribed period of
probation undergo.
(a) A course of training in the Police Training College at
Vellore for a period of not less than six months
(b) A course of training in the Tamil Nadu Special Police
for a period of not less than six months; and (c) a course of
practical training for not less than six months under a
Superintendent of Police thereafter."
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30. On 08.05.2009, the petitioner gave a representation requesting for
permanent absorbtion in Category-I of Deputy Superintendent of Police. The
second respondent/The Director General of Police by his
No.39030/GEIII(2,2008, dated 21.05.2009 to the Principal Secretary to
Government Home Department, Chennai and the said letter is extracted
hereunder:-
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31. Then the Government/first respondent by letter
No.69208/Police,1/72009-4 dated 12.01.2010 wrote a letter to the second
respondent/Director General of Police, Tamil Nadu that the Government has
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proposed to depute the petitioner for training in law to Tamil Nadu Police
Academy to qualify himself to be appointed as Sub Divisional Officer and
thereby to get himself qualified for conversion as the Deputy Superintendent of
Police Category-I and to IPS and the said letter is extracted hereunder:-
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32. In this connection he has requested the second respondent to clarify
the following:-
(i)In such conversion invite lot of similar request from all other higher
categories.
(ii)In the stagnation post of command this separate by any other
remedial measures, and in response to this letters, the second
respondent vide RC.No.GB333(II)/73/28/2010 dated 09.10.2010 as
given the clarification as follows:-
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33. On the representations made, the Tamil Nadu Government passed
G.O.Ms.No.48, Home Department narrating the eligibility creteria besides
observing that the petitioner would be stagnating for over 17 years unless he is
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promoted and the relevant paragraphs 4 & 5 of the G.O.No.48 is extracted
hereunder:-
"4. The Government have examined the case carefully and
have decided to accept the proposal of Director General of Police.
Accordingly, the Government orders that a Committee be constituted
with the following composition to examine the selection of Thin
Anthony Johnson Jeyapaul, Commandant, Small Arms for tronefer
and posting him as Deputy Superintendent of Police (Category-1) as
per the rule stipulated in GO. Ms.No. 2121. Home dated 25.08.1969,
so as to enable him for consideration for Appointment to IPS:
1) DGP Tamil Nadu
2)Additional General of Police and
Member, Tamil Nadu Uniformed
Services Recruitment Board
3)Additional Director General of
Police, (Administration) Chennai.
5. A Report on the selection made may be submitted to the
Government within a period of one month to pursue further. Thus, the
report ought to have been submitted on or before 09.02.2012. As
Shown above. Nearly 5 representations were given by the Petitioner
before issuing this G.O. When he made the 1 Representation on
15.09.2002 after completing his probation as Assistant Commandant,
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the Petitioner was aged 38 years only. But the Department took inspite
of 5 reminders, nearly 10 years to issue the G.O. for constituting the
Committee. Again, the Committee should have been constituted and
the report submitted within one Month, i.e., on or before 09.02.2012.”
34. The above G.O. was issued in the year 2012 to constitute the
Committee whereas the Committee was constituted only on 05.04.2017
after a delay of 5 years and no reasons have been given by the respondents
for such a inordinate delay. The second respondent Director General of
Police has stated in his letter dated 21.05.2009, in which he has requested
that the representation dated 08.05.2009 of the petitioner be considered
and requested an earlier order of the Government in the matter. This
clearly shows that the petitioner is eligible to be conferred to the rank of
I.P.S. since he has fulfilled all the eligibility conditions/Creteria/Rules as
the same is evidence to the above letter.
35. The petitioner made his first representation on 05.09.2002 after
completing his probation as Assistant Commandant and at that time, the age of
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the petitioner was 32 years only. But despite five reminders, the first
respondent has taken nearly 10 years to issue a G.O. in the year 2012 even
for constituting the Committee.
36. This Court by an order dated 18.08.2022, directed the petitioner to
submit his representation to the second respondent Director General of Police
and the said representation was submitted on the same day i.e. 18.08.2022 and
the second respondent has assured the petitioner to forward his representation
to the Government. It is also brought to the notice of the Court that the
G.O.Ms.No.4070 dated 05.07.2014 by which one G.Muthu Manickam to
become D.S.P. in Category – II was sent for training as DSP (Category – I Law
& Order) and his seniority as DSP (Category – I) was fixed from the date
became DSP, Category – II i.e. as per the original DSP panel year.
37. A Memo is filed by the petitioner dated 08.03.2023. There are earlier
occasions where three similarly placed officers like the petitioner were
conferred I.P.S who were previously appointed and confirmed as Deputy
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Superintendent of Police Category-3 and the names of the Officers are as
follows and the same is reflected in the letter written by the second respondent
Director General of Police, dated 21.05.2009.
(i)K.G.Dhinamani
(ii)K.Vadivelu
(iii)S.Manoharan.
All the three officers retired as Inspector General of Police. In this case, the
petitioner has been promoted as Assistant Commandant which is a
gazetted rank vide G.O.Ms.No.130 dated 07.02.2000. The Expert Committee
recommends the appointment of the petitioner as DSP category-I by relaxing
Rule 6A, 10B & 10C of the said Rules. The Expert Committee has also
recommended for relaxation of Rule 6 (A), 10(B), 10(C) of the said Rules. The
Rule 6(8) deals with passing the examination on certain law i.e. Rule 10(b)
deals with eligibility of the Assistant Commandant to get a conversion as DSP
category-I, if he has a good record of service, completed probation as Assistant
Commandant and so on. Rule 10(c) only prescribes that such candidates shall
be below 48 years of age. Therefore, the Committee has clearly established the
eligibility of the petitioner for conversion to the rank of Indian Police Service
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(IPS). As per Rule 11 the interse seniority shall be fixed only from the date of
his regular appointment in the gazette post and the Committee fixed the inter
seniority of the petitioner by fixing his conversion as DSP in the year 2012-13
since his batchmates were promoted as DSP in the panel year 2012-2013.
38. In this regard, this Court is of the view that the Committee has
exceeded its jurisdiction, since the Committee has been constituted only to
find the suitability of the petitioner to recommend for appointment to the
Indian Police Service. When three similarly placed persons who were
initially DSP in Category III has been appointed to Indian Police
Service.This petitioner alone has been denied the same which amounts to
discrimination and violation of Article 14 of the Constitution of India.
39. When a Rule or Principle is applicable to one set of persons, then
the same must be applied to the similarly placed persons and depriving the
same amounts, to discrimination and is in violation of Administrative law.
In G.O.Ms.475 one similarly placed person as of the petitioner namely,
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S.Manoharan has been sent for training from the rank of Additional SP which
is higher than the DSP rank and the Committee knew it very well. But he was
promoted as Commandant and there is no observation by the expert Committee
that in such a situation, the petitioner cannot be sent for training. The Rule 11
is Mandatory to fix such interse seniority of the said person appointed to the
gazetted rank in any of these three categories namely; (i) DSP (Category I), (ii)
DSP (Category II) and Assistant Commandant (Category III). This apart in
G.O.Ms.No.1263 one D.Krishnamuthy was given interse seniority from the
date he was appointed as DSP (Category II). Similarly, he was also given
interse seniority from the date he was appointed to the gazetted post. The
petitioner ought to have been sent for training as DSP category I in the year
2012 itself as per G.O.Ms.No.48, according to which the report outght to
have been filed within one month i.e. on or before 10.01.2012. Though the
G.O. was issued vide order dated 09.01.2012, the same was not done. If the
petitioner was sent for training for one year, he would have been a better
person in his career and retired as Inspector General of Police (IGP), like
the similarly persons already retired as I.G.P. namely K.G.Dhinamani,
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K,Vadivelu, B.Krishnamurthy and S.Manoharan. There is no doubt that
the future prospects of the petitioner in becoming an Indian Police Service
Officer has been shattered by the respondents, since in each and every
stage, there was inordindate delay in the proceedings which has ultimately
caused grave injustice to the petitioner. G.O.Ms.No.48 dated 09.01.2022 is
issued only to constitute a selection Committee in regard to the eligibility of
the petitioner to be conferred Indian Police Service and not fixing the interse
seniority. The selection committee, having found that the petitioner as eligible
in all aspects, found the petitioner has fulfiled all the eligibility creteria
mentioned in the Tamil Nadu Special Police Rules. But the Committee, while
recommending his case for convention to category – I Deputy Superintendent
of Police, also recommends that in case of the Government approving the
conversion to category-I, Deputy Superintendent of Police is seniority should
not be placed as per Rule 11A of Special Rules for Tamil Nadu Police Service
placing in the year 2000. Rather the seniority should be fixed with reference to
his original seniority in the category of Sub Inspector of Police placing him
Deputy Superintendent of Police (Category I) in the panel year 2012-2013.
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This recommendation by the Committee is pursuant to the G.O, and Committee
has exceeded its jurisdiction.
40. The G.O.Ms.No.48 (Police-I) Department, dated 09.10.2012 was
issued constituting the selection Committee for posting the petitioner as
Deputy Superintendent of Police (Category-I) and the report of the selection
Committee has to be submitted to Government within a period of one months
i.e. on or before 10.01.2012 whereas the committee was constituted only on
05.04.2017 and the third respondent vide letter RC.No.8408/GPIV(2)/2016
dated 06.04.2017, recommended the selection of the petitioner presently
Commandant Tamil Nadu Special Police III Battalion for transfer and posting
in Deputy Superintendent of Police, (Categry -I) in Clause I, Category I in
clause 3 of the Special Rules for Tamil Nadu Police Service and also
recommended the appointment of the aforesaid officers of Deputy
Superintendent of Police (Category-I) by relaxing Rule 6A, 10(b) and 10(c) of
the Special Rules for the Tamil Nadu Police Service and as informed that in
case of conversion, the seniority of the petitioner will be fixed as category I
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Deputy Superintendent of Police in the year 2000 as per Rule 11 A of the
Tamil Nadu Police Service and the first respondent has passed the order only
on 13.06.2017 stating that the proposal sent by the second respondent dated
06.04.2017 is not feasible of compliance as it is not in accordance with the
provisions of Tamil Nadu Police Service and the same has been issued after an
inordinate delay of five years.
41. The judgment of the Hon’ble Supreme Court in
Civil.Appeal.No.6868 of 2021 dated 22.11.2021 (in the case of State of U.P
& others Vs Vikash Kumar Singh & Others) relied on by the respondent is
not applicable to the present case as in that case, while being eligible relaxation
was sought which was not accepted by the Hon’ble Supreme Court of India. In
the present case, the petitioner possess all the eligibility and he deserves the
same which is not disputed fact by the selection committee. The Selection
Committee was fully satisfied that he has all the eligible creteria mentioned in
the Tamil Nadu Special Rules and Deputy Superintendent of Police Category -I
and the Government precluded it is not feasible to comply with the
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recommendation of the selection committee. The petitioner is going to attain
superannuation on 28.02.2024. The petitioner fulfilled all the eligible
conditions for being conferred the rank of IPS and it is due to the
administrative delay that he was not appointed. He may be considered to be
promoted as DIG from the present rank of Commandant due to post of DIG in
the Armed Police itself. Even though, he is promoted he need not undego any
training for one year, since it is only for those appointed as DSP, Category-I,
TSP, Category-II and Assistant Commandant Category-III. It was also brought
to the notice by the learned counsel appearing for the petitioner that the Armed
Police (AB) of the Department is functioning as a Head Quarters of all
battalions. There are DIG, IG, ADGP, specially posted in those ranks. So, this
Court do not find any impediment for the Government to promote the
petitioner as a DIG in Armed Reserve.
42. The inordinate administrative delay cannot deprive a person of his
right to be promoted or to be appointed to a particular post when he has the
required qualification and in this case, it had shattered the dreams of the
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petitioner to become a confferred IPS Officer for no fault on his part. The entire
delay is attributed to the State administration.
43. The respondents cannot apply the rules according to their whims of
fancies, it should be uniform and applicable to all the persons as per law. It
cannot deprive one person of the relief as per law when other 3 similarly placed
persons were granted the same relief.
44. In this case, right from the beginning the procedure adopted by the
respondents in the case of the petitioner is not appreciated by this Court.
Because of the Lethargic attitude of the respondents the petitioner got stagnated
in the post of Commandant for the last 8 years.
45. In the light of the peculiar facts and circumstances involved in this
case, this Court is of the considered view that the petitioner is eligible for
appointment to the post of Deputy Inspector General (DIG) Armed Reserved.
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46. In view of the above facts and circumstances of the case, the
respondents are directed to promote the petitioner as the Deputy Inspector
General of Police (DIG) Armed Reserved within a period of three months from
the date of receipt of a copy of this order and this order is only with regard to
the petitioner since the case is peculiar in nature. It is also made clear that this
order will not be a precedent and this order is confined only to the petitioner. In
other words, the consideration of the case of the petitioner to the post of DIG
Armed Reserved shall not be treated as a precdent in future and it will be a
super numery post created for a particular case.
47. Accordingly, the writ petition is disposed of with the above
directions. No costs. Consequently, connected miscellaneous petition is closed.
28.04.2023
Index: Yes/No
Speaking/Non-speaking Order
kmm
Note: Issue order copy on 08.05.2023
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To
1.The Principal Secretary,
State of Tamil Nadu,
Home (Pol.1) Department,
Fort St.George, Chennai - 600 009.
2. Director General of Police,
Mylapore, Chennai - 600 004.
3. Additional Director General of Police (Admin),
Mylapore, Chennai - 600 004.
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J.SATHYA NARAYANA PRASAD, J.
kmm
W.P.No.27042 of 2012
28.04.2023
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