Madras High Court
O.Shyed Mohaideen vs The Superintendent Of Police on 1 June, 2023
W.A.(MD)No.1142 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A.(MD)No.1142 of 2012
and M.P.(MD)No.2 of 2012
O.Shyed Mohaideen ... Appellant/Petitioner
Vs.
1.The Superintendent of Police,
Madurai District,
Madurai.
2.The Deputy Inspector General of Police,
Madurai Range,
Madurai.
3.The Inspector General of Police,
South Zone,
Madurai.
4.The Director General of Police,
Chief Office,
Chennai – 4.
5.S.Navaneethakrishnan
6.G.Murugesan
7.T.Murugesan ... Respondents/Respondents
PRAYER: Appeal filed under Clause 15 of Letters Patent, praying this
Court to set aside the order dated 11.04.2012 made in W.P.(MD)No.2329 of
2011 on the file of this Court.
1/12
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W.A.(MD)No.1142 of 2012
For Appellant : Mr.T.Cibi Chakkaraborthy
For Respondents 1 to 4 : Mr.A.K.Manikkam
Special Government Pleader
For Respondents 5 to 7 : No appearance
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This Intra Court appeal has been directed against the order passed
by the Writ Court dated 11.04.2012 made in W.P.(MD)No.2329 of 2011.
2. It is the case of the appellant, who was writ petitioner before the
Writ Court, that, he joined as a Police Constable Grade – II on 25.05.1988
in the Tamil Nadu Police Service and he was immediately attached to Motor
Transport Branch on Other Duty basis.
3. Even though he has attached to M.T. wing, his lien continued in
the regular wing, which is otherwise called as Armed Reserve wing.
4. After some years, normally test would be conducted for
promotional avenue and the said test even though was conducted for the
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W.A.(MD)No.1142 of 2012
Police people who are being in the regular line, such test had not been
conducted to the petitioner and it had not been informed to the petitioner
and therefore, he was not able to participate in the test. Had he been
continued in the regular wing litself without attached with the M.T. wing on
Other Duty basis, he would have been in a position to write the test and at
the earliest point of time he would have earned the promotion to the next
cadre.
5. However, only after 10 years i.e., in the year 1998 such test was
conducted in the M.T. wing itself, for which, the petitioner was permitted to
participate and he has chosen to participate in that test and got through and
subsequently only he was able to won the promotion.
6. The resultant situation, according to the petitioner, was that,
even though the private respondents herein and some other people, who are
juniors to the petitioners based on the date of enlistment originally in the
year 1998, subsequently they got a promotion and marched over the
petitioner, however, the petitioner, even though was senior in the enlistment
and seniority list, could not achieve such promotion, marching over the
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W.A.(MD)No.1142 of 2012
juniors and therefore, the said denial of permission to participate in the test
at the earliest point of time along with the juniors and others, who had been
simultaneously enlisted along with the petitioner, was bad in law and
therefore, because of that action on the part of the official respondents or
inaction on their part since the right choice of the promotion to the
petitioner has been denied at the appropriate time and by virtue of that the
juniors got the promotion. In order to challenge the same and seeking a
chance for such a promotion, of course, notionally on par with the juniors,
the petitioner had approached the Writ Court by filing the Writ Petition.
7. A learned Judge of the Writ Court having considered the said
plea made on behalf of the petitioner / appellant has rejected the same and
dismissed the Writ Petition by order dated 11.04.2012, which is impugned
herein.
8. Assailing the said order, Mr.T.Cibi Chakraborthy, learned
counsel appearing for the petitioner would submit that the denial of
permission to participate in the test in the regular wing along with others,
including the juniors of the petitioner is an inaction or arbitrary action on
the part of the official respondents, for which, the petitioner cannot be
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W.A.(MD)No.1142 of 2012
blamed.
9. Subsequently, after 10 years, only in the M.T. wing such a test
was conducted, where the petitioner was permitted to participate and even
though he become successful, he could not reach the position in the
promoted category along with the juniors of the petitioner and therefore, on
par with the said juniors the position of the petitioner shall be upgraded in
the promoted position and the same was sought for, which was since denied
by the Writ Court, the order impugned is infirm and therefore, the learned
counsel seeks indulgence of this Court.
10. Heard Mr.A.K.Manikkam, learned Special Government
Pleader, appearing for the official respondents, who would submit by
relying upon paragraph Nos.1 and 7 of the counter affidavit filed by the first
respondent before the Writ Court, where the first respondent had taken the
following stand:-
“1) With regard to para 2, it is submitted that the
applicant on this writ petition was appointed as a Grade II PC
on 25.05.1988 and attached to Motor Transport Branch on
Other Duty basis. His averment that he was not allowed to
participate in LNK / Naik test conducted in the General line on
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W.A.(MD)No.1142 of 2012
the pretext that he was borne on M.T. Strength cannot be
accepted. Being a Police Constable, he must be aware of all the
consequence of being on the O.D. in other units. When he was
on O.D. in a particular branch of the unit, his lien in original
unit from where he was taken on O.D. will remain there. So it
is upto him to decide to participate in the test in the General
line. Leaving this, he is claiming seniority in MT branch and
that too after number of year which can not be accepted. His
deputation to State Police Duty Meet in 1993 and Course
Piloting & Escorting team in SB School does not mean that he
is absorbed in MT branch. He was deputed for the above and
courses as a driver Police Constable by which the writ
petitioner cannot claim any seniority.
...
7. With regard to para 5(e), it is submitted that the
respondents are not erred in considering for promotion for
more than 20 years. The Motor Transport branch is treated as
specialized line where as Armed Reserve is treated as a general
line. Promotion are being ordered in both the lines separately.
Hence, it is upto the writ petitioner to choose the correct line
for earning his promotion. Besides the petitioner was served in
M.T. Branch on other duty basis and he was allowed to attend
the test during 1998 to absorb him in the M.T. Branch. Hence,
the respondents can not be held responsible for the mistake
committed by the writ petitioner.”
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W.A.(MD)No.1142 of 2012
11. By relying upon these averments and the stand taken by the
official respondents, the learned Special Government Pleader would submit
that, even though at the time of enlistment in the year 1988 he was enlisted
in the general wing and subsequently attached to the Motor Transport
Branch i.e., M.T. wing, the lien of the petitioner has not been cut of with the
general wing. Therefore, it is his duty to verify when the test is going to be
conducted by the Department for the people like the petitioner in the regular
wing and when such test was conducted first, the petitioner ought to have
appeared and he ought to have explored the possibility of getting through
the test and get the promotion.
12. However, the petitioner since has not chosen to appear for
such test conducted for the general wing candidates and in fact he had
chosen voluntarily to attend the test conducted for the M.T. Branch and he
had also become successful in the test and accordingly, he earned the
promotion, after several years, he cannot now turn around and say that his
juniors in the general wing already marched over the petitioner. This has
been considered by the learned Judge, who has given his reasons that, it is
not an automatic promotion to get a post of Sub-Inspector of Police and it is
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W.A.(MD)No.1142 of 2012
the promotion based on the test and selection process and in that selection
process, if somebody has got selected, where the petitioner was not able to
write the examination or test or not chosen to write the examination or test
by virtue of that he has not been selected, the question of claiming seniority
on par with his juniors does not arise and that resason has been assigned by
the learned Judge for rejecting the plea raised by the petitioner before the
Writ Court and therefore, the order impugned is to be sustained, he
contended.
13. We have given our anxious consideration to the rival
submissions made by the learned counsel appearing for the parties and the
materials placed before this Court.
14. As has been rightly pointed out by the learned Special
Government Pleader appearing for the official respondents, though the
petitioner has been enlisted in the year 1988 as Grade – II Police Constable
in the general wing, subsequently, he has been attached to Motor Transport
Branch i.e., M.T. wing.
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W.A.(MD)No.1142 of 2012
15. The said attachment is only on the basis of “On Other Duty
Category” and he has not been permanently absorbed in the said wing.
16. Insofar as the promotional avenue is concerned, there is a
separate promotional avenue for the general wing people as well as the
Motor Vehicle wing people.
17. Separate test would be conducted for general wing and another
separate test would be conducted for M.T. branch or wing depending upon
the vacancy arose in the particular wing in the promotional avenue.
18. Such a test when was conducted for the general wing the
petitioner could have appeared, but he has not chosen to appear, whereas he
has chosen to appear for the test conducted for the M.T. Branch in the year
1998 and he got through.
19. When that being the position, it is the voluntarily choosing of
the path either General wing or M.T. Branch wing and in this context the
petitioner by his own action in the year 1998 by participating in the test
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W.A.(MD)No.1142 of 2012
conducted for M.T. Branch he has chosen the said path and therefore, he
earned promotion only through the said M.T. Branch path and not through
the general wing path.
20. Whereas the private respondents and others, who might have
been juniors to the petitioner at the time of enlistment has chosen to write
the test in the general wing and they earned such promotions, which might
have been earlier to the promotion that was earned by the petitioner after
passing through the test in 1998, therefore, the said promotion given to the
private respondents or other similarly placed persons cannot be equated
with the petitioner by merely pointing the seniority of the petitioner based
on the initial enlistment in the year 1988.
21. These reasons, in fact, in nutshell has been given by the
learned Judge in the impugned order and accordingly, the plea of the
petitioner was rejected by the Writ Court. The said order passed by the Writ
Court, in the considered opinion of us, is to be sustained as it does not
warrant any interference from this Court and hence, the said order is to be
sustained and the Writ Appeal accordingly fails and therefore, it is
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W.A.(MD)No.1142 of 2012
dismissed. However, there shall be no order as to cost. Consequently,
connected miscellaneous petition is closed.
(R.S.K., J.) & (K.K.R.K, J.)
01.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
SJ
To
1.The Superintendent of Police,
Madurai District,
Madurai.
2.The Deputy Inspector General of Police,
Madurai Range,
Madurai.
3.The Inspector General of Police,
South Zone,
Madurai.
4.The Director General of Police,
Chief Office,
Chennai – 4.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.1142 of 2012
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
SJ
W.A.(MD)No.1142 of 2012
01.06.2023
https://www.mhc.tn.gov.in/judis
