IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.06.2017
C O R A M
THE HONOURABLE MR.JUSTICE M. GOVINDARAJ W.P.NO.9138 OF 2013
G.Babu ... Petitioner
Vs.
1. The Secretary to Government Home (Police II) Department Fort St. George, Chennai – 600 009.
2. The Director General of Police Mylapore, Chennai – 600 004.
3. The Commissioner of Police Chennai City Egmore, Chennai – 600 008. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to Rc.No.Estt V(1)/477/88543/2008 dated 17.04.2012 and quash the same and directing the respondents to give service and monetary benefits from the year 2003 by awarding 10 full marks.
For Petitioner : Mr.S.Venkatesh For Respondents : Mr.R.Prathap Kumar Additional Government Pleader O R D E R The petitioner has joined service as Police Constable on 30.09.1988. He was upgraded as Grade-I Police Constable on 04.08.1995 and later, he was promoted as Head Constable on 27.05.1998.
2. The Deputy Commissioner of Police, Traffic South, prepared “C” list of Head Constables (Armed Reserve) fit for promotion to the post of Sub Inspector of Police (Armed Reserve), for the year 2002. As per Rule 3(2)(d) of the Special Rules for Tamil Nadu Police Subordinate Service, a candidate, who is appearing for the Range Promotion Board has to satisfy the following conditions:
"a) Working knowledge in English
b) Should have been born after 01.07.1947
c) Should have joined the service on or before 01.07.1995
d) Promoted as Head Constable on or before 01.07.1998"
3. The case of the petitioner is that though his juniors were selected, the petitioner's name was not found in the "C" list, which forced him to file a writ petition, challenging his non selection, in W.P.No.34824 of 2006. This Court, vide order dated 26.11.2008, directed the third respondent therein to consider and pass orders on the petitioner's representation dated 22.07.2006.
4. Since no order was passed on the said representation, the petitioner was constrained to file another writ petition in W.P.No.23629 of 2011. This Court vide order dated 18.10.2011, directed the third respondent therein to consider and pass orders on his representation dated 20.01.2009.
5. Subsequently, the third respondent has passed an order dated 17.04.2012, rejecting the claim of the petitioner for inclusion of his name in the "C" list of Head Constables (Armed Reserve) fit for promotion to the post of Sub-Inspector of Police (Armed Reserve) and the same was served on the petitioner on 13.09.2012. Challenging the same, the petitioner has filed the present writ petition.
6. The learned counsel for the petitioner insists for awarding of more marks under the caption "rewards". According to the learned counsel for the petitioner, the candidates, who have secured rewards between 1 and 100, were allotted 5 marks and those, who have secured more than 101 rewards, were allotted 10 marks. Learned counsel relied upon para 5 of the counter affidavit, in which, it is stated that the performance of the candidate is evaluated for the period upto 1st July of the respective year. Therefore, the rewards secured by the petitioner, as on 01.07.2003, should have been considered.
7. The learned counsel for the petitioner has also relied upon para 8 of the counter affidavit, in which, it is stated that the petitioner has earned 98 rewards during the check period and hence he was awarded 5 marks against reward entries during 2003. The petitioner was awarded 74.40 marks in the selection. It was further vehemently contended that the cut off mark for selection was fixed as 75 in the year 2003. In the rewards list produced, the rewards secured by the petitioner was shown as 101 as of June 2003. It is well settled that the candidates, who secured rewards more than 101, are entitled to 10 marks, as per rules. If it is taken into account, the petitioner would have secured 79.40 marks. Therefore, it is submitted that on this ground alone, the petitioner should have been selected to the post of Sub Inspector of Police (Armed Reserved) in the year 2003 itself.
8. Heard the submissions made on either side and perused the materials available on record.
9. The break up details for awarding of marks under various heads are given as under:
a) Turn Out
b) Drill
c) Command
10. From a perusal of the counter affidavit filed by the respondents, it is very clear that the petitioner has awarded 5 marks, considering the rewards secured by him viz., 98 rewards, during the said period. It is also very clear that the if the petitioner has secured more than 101 rewards, he is entitled 10 marks. If 10 marks is added, the petitioner would have crossed the cut off marks prescribed by the respondents and he would have been promoted as being eligible for another scheme.
11. The learned counsel for the petitioner would also rely on a judgment of the Division Bench of this Court in Writ Appeal No.174 of 2013 dated 12.06.2014, wherein this Court, has considered awarding of more marks under various categories, following the judgment of the Hon'ble Supreme Court in UNION OF INDIA -VS- HEMRAJ SINGH CHAUHAN [2010
(4) SCC 290] in which, the Supreme Court has held as under.
“35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare state.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.”
Considering the judgment of the Hon'ble Supreme Court, cited supra, a Division Bench of this Court, has set aside the rejection order and remanded the matter to the second respondent therein to reassess the ACR entry and to award marks afresh.
12. In the instant case also, from the records, it is clear that the petitioner is eligible to get 5 more marks i.e. 10 marks under the category "rewards" as he has secured 101 rewards, during the said period, that is as on 01.07.2003. Therefore, the impugned order dated 17.04.2012, passed by the third respondent is liable to be set aside and accordingly, the same stands set aside. The respondent nos. 2 and 3 are directed to award 10 marks to the petitioner for the rewards secured by him and thereafter, considering the same, pass appropriate orders, on merits and in accordance with law, within a period of ten (10) weeks from the date of receipt of a copy of this order.
13. The writ petition is allowed with the above observations and directions. No costs.
29.06.2017
Index: yes/No Speaking/Non-Speaking rna/tk To
1. The Secretary to Government Home (Police II) Department Fort St. George, Chennai – 600 009.
2. The Director General of Police Mylapore, Chennai – 600 004.
3. The Commissioner of Police Chennai City Egmore, Chennai – 600 008.
M. GOVINDARAJ, J.
rna/tk W.P.NO.9138 OF 2013 29.06.2017