Madras High Court
A.Ibrahim Sheriff vs The Director General Of Police on 13 September, 2023
WP.No.32209/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 13.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.32209/2017
A.Ibrahim Sheriff ... Petitioner
Versus
1.The Director General of Police
Tamil Nadu, Chennai 600 004.
2.The Deputy Inspector General of Police
Villupuram Range, Villupuram.
3.The Superintendent of Police
District Police Office
Cuddalore District @ Cuddalore. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of certiorarified mandamus to call for
the records pertaining to the order passed by the third respondent herein in
his C.No.A1/38561/2015 dated 06.11.2017 and quash the same and
consequently direct the respondents herein to promote the petitioner
notionally as regular Sub Inspector of Police with effect from 13.11.1995
and as Inspector of Police notionally from 01.02.2005 from the date of
1
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promotion of immediate junior and consequently revise the petitioners
retirement benefits including pension with all consequential monetary and
service benefits.
For Petitioner : Mr.Ravi Shanmugam
Senior counsel for
Mrs.Sudha Ravi
For Respondents : Mr.T.K.Saravanan, GA
ORDER
(1) The writ petition has been filed in the nature of a writ of certiorarified
mandamus seeking records of an order passed by the 3rd respondent,
Superintendent of Police, Cuddalore District in C.No.A1/38561/2015
dated 06.11.2017 and to quash the same and to direct the respondents
to promote the petitioner notionally as regular Sub Inspector of Police
with effect from 13.11.1995 and as Inspector of Police notionally
from 01.02.2005 from the date of promotion of the immediate junior
and revise the retirement benefits of the petitioner including pension
and also grant all consequential monetary and service benefits.
(2) The petitioner had joined the police services as Grade II Police
Constable on 15.11.1970. He was then promoted as Grade I Police
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Constable. He was further promoted as temporary Sub Inspector of
Police on 15.09.1986.
(3) The petitioner was placed under suspension on 04.06.1992 based on a
criminal complaint with respect to the death of one Nandagopal at
Annamalai Nagar Police Station in Cuddalore District. In the ensuing
trial, the petitioner was convicted of the offences and was imposed
with sentence of rigorous imprisonment for three years for
commission of offences under Sections 218, 323, 330 and 348 of IPC.
The petitioner further stated that by proceedings dated 23.12.1997,
the 2nd respondent had removed the petitioner from service invoking
Police Standing Order 59 and Rule 3[c][i][1] of the Tamil Nadu
Police Subordinate Service [Discipline and Appeal] Rules, 1955. The
removal was on the ground that the petitioner had been convicted by
a competent Criminal Court.
(4) The petitioner then filed a Criminal Appeal in CA.No.680/1997
against the conviction of the Principal Sessions Court at Cuddalore.
By a judgment dated 28.11.2002, a Division Bench of this Court had
confirmed the conviction and dismissed the Criminal Appeal with
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certain modifications. The petitioner then filed Criminal Appeal in
CA.NO.1510/2003 before the Hon'ble Supreme Court. By a judgment
dated 15.02.2011, the Hon'ble Supreme Court had allowed the
Criminal Appeal and had observed that the petitioner deserves the
benefit of doubt to be extended and that he is acquitted of charges and
that the Appeal be allowed. The judgment of the Trial Court and the
judgment of the High Court had been set aside.
(5) Thereafter, the petitioner came back to the respondents seeking
reinstatement. The Director General of Police, Chennai, had
recommended reinstatement of the petitioner and to permit the
petitioner to retire from service with effect from 31.05.2005 by
determining the period of sentence of suspension and out of
employment as 'period of duty'. Thereafter, the Principal Secretary to
Government, by a letter dated 21.11.2014, had directed the 1st
respondent herein to reinstate the petitioner back in service and to
permit the petitioner to retire from service with effect from
31.05.2005. Necessary orders were also passed to treat the
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suspension period and the period out of employment as regular period
on duty.
(6) The claim of the petitioner is that he had been temporarily promoted
as Sub Inspector of Police on 15.09.1986. A batch of Original
Applications in OA.No.1565/1995 batch had been filed before the
Tamil Nadu Administrative Tribunal by the Head Constables and
temporary Sub Inspectors of Police challenging a Memorandum of
the 1st respondent to constitute a Range Promotion Board for
promotion as regular Sub Inspector of Police. On 13.11.1995, the
Tribunal had rendered a decision that those who had already been
acting as Sub Inspectors of Police, were eligible for Screening Test
without written, viva voce and drill tests. It was stated that their
performance should be on the basis of the past performance as Head
Constables. The petitioner claimed that his juniors had been
promoted as Sub Inspectors of Police and subsequently, also as
Inspectors of Police. The petitioner then preferred a representation
seeking regularisation of his services as Sub Inspector of Police and
also to grant promotion as Inspector of Police. It is contended that
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the Superintendent of Police at Cuddalore District, in proceedings
dated 13.01.2017, had forwarded a proposal to the 2nd respondent
herein stating that the petitioner was entitled for regularisation of his
service as Sub Inspector of Police and also as Inspector of Police on
par with his immediate junior. This proposal of the 3 rd respondent
was then forwarded by the 2nd respondent to the 1st respondent. It is
understood that the 1st respondent had once again forwarded the
proposal for remarks to the 3rd respondent. The 3rd respondent /
Superintendent of Police at Cuddalore District, who had originally
proposed regularisation of service both as Sub Inspector of Police and
as Inspector of Police, however passed the Impugned Order stating
that the petitioner is not entitled for such regularisation or for
promotion since he had not attended the Range Promotion Board.
This order is now impunged in the present writ petition.
(7) A counter affidavit had been filed on behalf of the respondents
wherein it had been stated that during the year 1995, the 1st
respondent had issued instructions to convene Range Promotion
Board for promotion of Head Constables to Sub Inspectors of Police.
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It was also stated that Original Applications had been filed before the
Tamil Nadu Administrative Tribunal against that particular direction
to convene the Range Promotion Board. On 13.11.1995, the Tribunal
had passed a direction that those who had already acted as Sub
Inspectors of Police for a period of six years, should be regularised
straightaway and those who had acted as Sub Inspectors for three
years as on 21.02.1995 and those who are senior to them, should be
subjected to Screening Test without viva voce and drill test. It had
also been stated that the performance should be on the basis of past
performance as Head Constables. It had been stated that the case of
the petitioner was considered in detail by the 1st respondent. It had
been further stated that the petitioner did not make himself available
for the selection process of Head Constable to be promoted as Sub
Inspector of Police through the Screening Board in the year 1995-
1996. It had also been stated that seniority can be considered only
when the merit and ability are approximately equal and then based on
performance in test and viva voce. It had been stated that since the
petitioner had not participated in the Range Promotion Board for the
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year 1995-1996, the competitive merit could not be decided at this
distance of time. It had also been stated that as per the decision of the
Tribunal, the Range Promotion Board was conducted as a screening
method based on the past performance of the individuals. It had been
finally stated that the petitioner is not entitled for the relief sought
and that the writ petition should be dismissed.
(8) Heard the learned Senior Counsel appearing for the petitioner and the
learned Special Government Pleader appearing for the respondents.
(9) It is the contention of the learned Senior Counsel appearing on behalf
of the petitioner that the petitioner had joined the services as Grade II
Police Constable and later, was promoted as Grade I Police
Constable. The petitioner was also promoted as temporary Sub
Inspector of Police. These facts are not in dispute. Thereafter, the
petitioner got involved in a criminal complaint relating to the death of
one Nandagopal at Annamalai Nagar Police Station at Cuddalore
District. The petitioner was placed under suspension. Consequent of
filing of Final Report, the matter was tried before the Principal
Sessions Court at Cuddalore and by a judgment dated 09.07.1997, the
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petitioner was convicted of offences under Sections 218, 323, 330
and 348 of IPC. The petitioner then filed Crl.A.No.680/1997
questioning such conviction. A Division Bench of this Court, vide
judgment dated 28.11.2002, had dismissed the Criminal Appeal.
Thereafter, the petitioner filed CA.No.1510/2003 before the Hon'ble
Supreme Court. By a judgment dated 15.02.2011, the Appeal was
allowed and the conviction and sentence imposed against the
petitioner were set aside. In effect, the said conviction should not be
considered by the respondents for any purpose. The period of
suspension and the period out of employment of the petitioner was
also regularised by the proceedings passed by the respondents. Again
this fact is neither under dispute nor questioned by the respondents.
The petitioner had also retired from service on attaining the age of
superannuation. The petitioner now places a claim stating that he
should be promoted as regular Sub Inspector of Police and further, as
Inspector of Police. This claim is based on the judgment of the Tamil
Nadu Administrative Tribunal wherein the issue of Range Promotion
Board was considered and the Tribunal in a string of Original
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Applications filed by the Head Constables / temporary Sub Inspectors
of Police, had stated that the Screening Test alone should be
conducted and the past performance should be examined and laid
down certain criteria for consideration for further promotion as Sub
Inspectors of Police.
(10) The learned Senior Counsel appearing for the petitioner placed
reliance on that particular judgment of the Tamil Nadu Administrative
Tribunal and then pointed out the Impugned Order wherein, the
request of the petitioner to be considered for promotion as Sub
Inspector of Police was rejected since it had been stated that the
petitioner had not participated in the Range Promotion Board. It is
therefore, argued by the learned Senior Counsel that since the Board
itself had been done away with by the Tribunal, there could not be
any occasion for the petitioner from so participating in that particular
promotion method. It was stated that the only method that the
petitioner should be considered for promotion as Sub Inspector of
Police was by examining the past records and the Screening Test as
envisaged under the order. It is therefore insisted that the petitioner
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should be deemed to have been promoted as Sub Inspector of Police
and later as Inspector of Police.
(11) The facts stated are not in dispute. The issue is only with respect to
eligibility of the petitioner to be promoted as Sub Inspector of Police
and then to Inspector of Police. The petitioner had given a
representation seeking such promotion.
(12) In a communication issued by the Superintendent of Police,
Cuddalore District, dated 13.01.2017 to the Deputy Inspector General
of Police, Villupuram Range, the representation of the petitioner was
considered and the Superintendent of Police was of the opinion that
the petitioner had participated in the Screening Test and had also
examined the marks obtained by the petitioner herein and had also
observed that the said mark was more than the mark obtained by the
immediate junior and further observed that the immediate junior had
been promoted as Sub Inspector of Police and therefore, gave an
opinion that the petitioner should also be considered for promotion as
Sub Inspector of Police. This particular opinion of the
Superintendent of Police, Cuddalore District / 3rd respondent herein,
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was then forwarded by the Deputy Inspector General of Police,
Villupuram Range, to the 1st respondent / Director General of Police,
Chennai, by a communication dated 25.01.2017. The matter then
came back to the office of the Superintendent of Police, Cuddalore
District for further remarks. Further remarks given on 06.11.2017 is
the order impugned and it is quite unfortunate to note that the very
same Superintendent of Police, who had earlier recommended that the
case of the petitioner could be considered for promotion, had taken a
complete 'U' turn and stated that since the petitioner had not
participated in the Range Promotion Board, he could not be
considered for promotion.
(13) The same authority, who had earlier passed a particular order, should
not sit back and take a decision contrary to the earlier order without
assigning reasons as to why he differed from the earlier order passed
by him. If he has reservations to adhere to the earlier order, then in
all proprietory, the officer should have forwarded the entire papers to
another officer of equal rank to re-examine the papers and pass
further orders. But, it does not bode well to note that the same officer
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/ Superintendent of Police, Cuddalore District had passed two
separate orders, one, recommending promotion of the petitioner as
Sub Inspector of Police and the other, stating that the petitioner
cannot be promoted as Sub Inspector of Police since he had not
participated in the Range Promotion Board.
(14) In the first instance, the very same official had placed reliance on the
marks obtained by the petitioner in the Screening Test. There was no
whisper about the participation or non-participation in the Range
Promotion Board. In the order impugned, though it had been stated
that the petitioner did not participate in the Range Promotion Board,
and there is no whisper about the marks obtained in the Screening
Test.
(15) To a little extent, the order could be accepted or could be termed
'acceptable' if two separate officials had examined the records. But
the very same official on the basis of the same records, had taken two
contradictory views. In my opinion, this cannot withstand the
scrutiny of the Court and therefore, on this one ground alone, the
order impugned will have to be interfered with and has to be set aside
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and the matter will have to be remitted back to the Superintendent of
Police, Cuddalore, who, as on date, must be a different officer and the
said Superintendent of Police may re-examine the entire issue on the
basis of the available records.
(16) While so examining, the Superintendent of Police may also take into
consideration, the judgment relied on by the learned Government
counsel for the respondents in Civil Appeal No.11447/2014 [The
Director General of Police, Tamil Nadu and Others Vs.
V.Gurunathan], filed against a similarly placed individual. By a
judgment dated 16.12.2014, the Hon'ble Supreme Court had
examined the issue with respect to promotion as Sub Inspector of
Police and had considered the arguments advanced that at a distant
point of time, the respondents cannot be asked to perform an
impossible act of granting promotion and further promotion. The
reason of the Hon'ble Supreme Court is extracted below:-
''....Having heard learned counsel for the parties,
we are of the considered opinion that the directions
issued by the High Court are really difficult to be
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complied with by the appellants. The department be
asked to perform impossible act. Whether the
respondent could have applied for the post at tht point
of time is another matter. Had he applied and the State
had denied the matter would have been in another
realm. Suffice it to state that at this distance of time, a
direction would be in the realm of impossibility and,
therefore, the order passed by the High Court is
unsustainable and, accordingly, it is set aside.
Resultantly, the appeal is allowed and the order
passed by the High Court is set aside. There shall be
no order as to costs.''
(17) Though this judgment is binding on this Court, since the order
impugned had been passed by the very same official who had also
earlier considered the case of the petitioner, it would only be
appropriate that the matter is remitted back to the Superintendent of
Police, Cuddalore District, to re-examine the entire issue, not only on
the basis of the available records, but also on the basis of the
reasonings given by the Hon'ble Supreme Court in the
aforementioned judgment. While examining the judgment of the
Hon'ble Supreme Court, one distinguishing feature, as pointed out by
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the learned Senior Counsel, may also be examined, namely, that the
respondent therein had not participated in the Screening Test,
whereas the petitioner herein had actually participated in the
Screening Test, which had also been observed in the order of the
Superintendent of Police dated 13.01.2017. All these factors may be
considered and an order may be passed, preferably within a period of
sixteen weeks from the date of receipt of a copy of this order. If
clarifications are required, notice may be issued to the petitioner and
the representation made by him, may also be considered before
passing final orders.
(18) The writ petition stands disposed of. No costs.
13.09.2023
AP
Internet : Yes
To
1.The Director General of Police
Tamil Nadu, Chennai 600 004.
2.The Deputy Inspector General of Police
Villupuram Range, Villupuram.
3.The Superintendent of Police
District Police Office
Cuddalore District @ Cuddalore.
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WP.No.32209/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.32209/2017
13.09.2023
https://www.mhc.tn.gov.in/judis
