The prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records pertaining to the memorandum in Rc.No.276162/NGB.V(2)/2000 dated 3.4.2004 on the file of the first respondent and the order No.NA.KA.No.A3/379/12968/2002, dated 21.4.2004 on the file of the third respondent and quash the same and direct the respondents to consider his promotion as Head Constable on par with his immediate juniors and place him at the appropriate place in the seniority of the 1995 at Madurai Armed Reserve and award all consequential benefits including promotion as Sub Inspector of Police.
2. The facts necessary for disposal of the writ petition are as follows:
(a) Petitioner was appointed as Grade-II Police Constable on 2.4.1981 at TSP 6th Battalion and his name was included in the list of M.T. Police Constable (Motor Transport). Further, his name was included in the M.T.Havildar list at TSP 6th Battalion in the year 1987-88 in Sl.No.2 and brought to 'B' list with effect from 26.3.1987 in the category of Havildar. He has completed probation in the post of Havildar with effect from 28.2.1988. Petitioner was transferred to Madurai District Armed Reserve on 15.12.1993 and was posted as Grade-II Police Constable. Subsequently he was promoted as Grade-I Police Constable in the year 1995.
(b) The second respondent issued a circular dated 22.4.1985 stating that on transfer from TSP to Armed Reserve, if there is no vacancy at Armed Reserve, the Havildar of TSP will be taken as Grade-II Police Constable at AR and thereafter as and when vacancy arises, they will be posted as Head Constables. Petitioner further states that Rule 30 of the Special Rules for Tamil Nadu Special Police deals with transfer of TSP persons to local police if they completed ten years of service with the same seniority.
(c) The petitioner was transferred and he was posted as Grade-II Police Constable in the year 1993 at Madurai Armed Reserve. After bifurcation of Madurai District into Madurai District and Theni District in the year 1996, the petitioner was posted to Theni District in the year 1996 as Grade-I Police Constable and he got his promotion as Head Constable in the year 2000 at Theni District Armed Reserve.
(d) One Arulanandam and Irulandi filed original applications O.A.Nos.5856 and 6035 of 1997 before the Tamil Nadu Administrative Tribunal seeking promotion as Havildar from the date of vacancy at AR on transfer from TSP. The Tribunal, after considering the various Chief Office memos and circulars, by order dated 29.10.1999 allowed the original applications and directed that the applicants therein are entitled to be posted as Head Constables as and when vacancy arises at AR. The Superintendent of police also implemented the said order of the Tribunal.
(e) According to the petitioner the order of the Tribunal is squarely applicable to his case and his seniority has to be revised and he should be promoted with effect from the date on which his juniors were promoted as Head Constable at AR immediately when the Head Constable post fell vacant.
(f) One Srinivasan, who was junior to the petitioner was promoted as Head Constable on 13.2.1995 and hence the petitioner ought to have been promoted as Head Constable from that date as per the order of the Tribunal. But the petitioner was promoted as Head Constable only in the year 2000 and because of that he could not attend Sub Inspector Selection Board, in which his juniors had participated and got selected as Sub-Inspectors, whereas the petitioner lost his opportunity to participate in the selection process.
(g) On coming to know that his juniors were promoted, petitioner made representation dated 16.3.2002 and the Superintendent of Police, Theni, also forwarded the same to the respondents 1 and 2 by his letter dated 12.12.2002. According to the petitioner, the second respondent/Deputy Inspector General also recommended the case of the petitioner to the first respondent/Director General of Police.
(h) Petitioner's representation was rejected by the third respondent by his memo dated 21.4.2004 on the basis of the memo of the first respondent dated 3.4.2004, on the ground that he is working at Theni District and he cannot claim seniority at the Madurai District as separate seniority list is maintained at each District.
(i) The said memos are challenged in this writ petition on the ground that the respondents failed to follow the circular memorandum dated 22.4.1985; that the respondents failed to apply the ratio laid down in the order of the Tribunal dated 29.10.1999 in O.A.Nos.5856 and 6035 of 1997; that the rejection of petitioner's legitimate claim is arbitrary and illegal; and that, the first respondent did not apply his mind while rejecting the claim of the petitioner in spite of the recommendation of the third respondent dated 12.12.2002.
3. The respondents have filed counter affidavit contending as follows:
(i) At the time of issue of the circular dated 22.4.1985, the Tamil Nadu Special Police Personnel, who have completed 17 years of service in TSP alone were eligible for transfer to the Armed Reserve. The amendment issued to the Sub-rules for Tamil Nadu Special Police in G.O.Ms.No.1687 dated 21.7.1987 provided transfer of Tamil Nadu Special Policemen to District Armed Reserve on completion of ten years. Petitioner who was appointed in the year 1981 was transferred to the District Armed Reserve in 1993 as per the amendment issued to the sub-rules. Hence he could not claim the concession in the circular dated 22.4.1985, which was applicable to TSP personnel, who have served in TSP for 17 years and subsequently transferred to District Armed Reserve.
(ii) In the year 1993, huge number of recruit constables were inducted in TSP Battalion. Consequently, 3292 TSP personnel of various ranks, who have completed ten years of service in TSP battalions were transferred to District Armed Reserve as per the memo of the first respondent dated 30.11.1993, in which it is clearly instructed that since there is no vacancy of Head Constables/Naiks in the District Armed Reserve such of those Havildars/Naiks, who have opted for transfer to the District Armed Reserve in the same rank were also ordered to be transferred as Grade-II Police Constables. If the petitioner was not willing for transfer to the District Armed Reserve as Grade-II Police Constable he could have remained in TSP itself. Hence his claim of protection of rank after having opted for transfer to the District Armed Reserve as Grade-II Police Constable is not justifiable.
(iii) It is further stated that the petitioner was transferred from TSP 6th Battalion to Madurai District Armed Reserve on 15.12.1993 as per his willingness foregoing the promotion earned in TSP battalion. The applicants in O.A.Nos.5856 and 6035 of 1997 were serving in TSP Battalions in general line, whereas the petitioner was serving in Motor Transport Group and hence he could not compare the applicants in the said original applications in his favour.
(iv) The petitioner was promoted as Grade-I Police Constable in the year 1995 and his promotion to the next rank of Head Constable was due only after completing five years i.e, in 2000, whereas the said Srinivasan, who was appointed in the District Armed Reserve was promoted as Grade-I Police Constable on 18.7.1990 and as Head Constable on 13.11.1992. Though he was reverted on 7.12.1992 as Grade-I PC for want of vacancy, again he was promoted as Head Constable with effect from 13.2.1995. Hence the said Srinivasan is not junior to the petitioner. As the petitioner was promoted as Head Constable only in 2000, he was not eligible to attend the promotion test to the post of Sub-Inspector. Since the petitioner was transferred from Tamilnadu Special Police to District Armed Reserve as Grade-II Police Constable and got promoted as Grade-I Police Constable in the year 1995, he was not entitled for seniority as Head constable from the year 1995.
4. The petitioner filed rejoinder stating that the respondents cannot improve their case by giving new reasons in the counter affidavit, in the sense, the claim of the petitioner was rejected on the ground that he cannot claim seniority as he was transferred to Theni District, but the respondents in the counter affidavit took a new stand that the petitioner belong to Motor Transport Group and he cannot be compared with the applicants in O.A.Nos.5856 and 6035 of 1997, who were serving in the general line. There is no category like general line and Motor Transport Group in Armed Reserve and no separate selection to those categories are contemplated in the rule. The amendment made to Sub-rule vide G.O.Ms.No.1687 dated 21.7.1987 has nothing to do with the circular memorandum dated 22.4.1985. Rule 30 of the Special Rules for Tamil Nadu Special Police specifically states that the Havildar post is equivalent to that of Head Constable post in District Armed Reserve and the Tribunal in number of cases reiterated that as and when vacancy arises, the TSP Havildar, who join as Grade-II Police Constable at Armed Reserve should be promoted as Head Constable and the respondents 2 and 3 also accepted the same and recommended the case of the petitioner. The memo dated 30.11.1993 was not issued superseding the circular memorandum dated 22.4.1985 and the said circular memorandum has not been cancelled till date and the first respondent has implemented several orders of the Tribunal based on the circular memorandum. While the petitioner was working at Armed Reserve, Madurai District, the 4th respondent Srinivasan was given promotion on 13.2.1995 as Head Constable and thereafter only petitioner was transferred to Theni District in the year 1996 and hence the reason for rejection of petitioner's claim is liable to be rejected.
5. The learned counsel for the petitioner relied on Rule 25(b) of the Special Rules for Tamil Nadu Police Subordinate Service Rules and contended that the said rule protects the seniority of the petitioner. The learned counsel also submitted that in W.P.No.27036 of 2005 by order dated 13.4.2006, I had an occasion to consider a similar issue and allowed the writ petition by directing the respondents therein to give appropriate promotion and all service benefits to the petitioner therein within six weeks. The learned counsel further submitted that the said order was challenged by the State Government as well as the first respondent herein in W.A.No.500 of 2008 and Division Bench of this Court by Judgment dated 16.6.2008 dismissed the writ appeal and thus the matter in issue is covered by the said Division Bench judgment.
6. The learned Government Advocate after going through the said orders fairly submitted that the issue involved in this writ petition is covered by the above referred Division Bench judgment.
7. In the Division Bench Judgment referred above, it is held as follows:
"2. While the said order was impugned by the learned Government Pleader for the State, he submitted that as the first respondent on his own sought for a transfer from the Tamil Nadu Special Police IX Battalion to the District Armed Reserve, his seniority in the previous service cannot be counted. Learned Government Pleader further submitted that the direction of the learned Judge of the writ court to count the seniority of the first respondent in the previous service is contrary to the relevant administrative instructions which will hold the field in the absence of a rule. In support of his submission, he refers to paragraph 3 of his reply affidavit, which runs as follows :
"It is submitted that the applicant was enlisted as Gr.II PC in TSP.VII Bn on 1.4.1981. He was transferred to T.S.P.III Bn.Manimuthar in the same rank and joined on 13.8.1985 and then to T.S.P.IX Bn. Manimuthar on 4.7.1987. While he was working in T.S.P.IX Bn, he was transferred to District A.R. at his option foregoing his seniority and promotion gained in T.S.P. Battalions and reported in Ramnad District A.R. on 22.12.1993 as Gr.II PC. Then at his request, he was transferred to Tirunelveli District A.R. and reported for duty on 7.11.1994 as Gr.II PC."
3. Today, Rule 25(b) of the Special Rules for Tamil Nadu Police Subordinate Service Rules has been placed before us. Sub-rules (b), (c) and (d) have come by way of amendment. Sub-rule (b) of the said rule does not support the contention of the learned Government Pleader. The said rule is set out below:-
"25(b) The transfer of a person from one class or category of the service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred, shall be determined with reference to the rank in the class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority."
On a perusal of the said rule, it appears that the contention raised by the learned Government Pleader cannot be sustained and the finding of the learned Judge of the writ court has to be upheld inasmuch as by sheer transfer from the Tamil Nadu Special Police to the Armed Reserve, the first respondent cannot be said to have foregone his seniority. Therefore, the order of the learned Judge of the writ court has to be carried out by the State. It may be noted here that before the learned Judge of the writ court, despite notice, the private respondents, viz. respondents 2 to 15 herein, did not choose to appear. This has been recorded by the learned Judge in paragraph 3 of his order. In that view of the matter, we are passing the aforesaid order.
4. The writ appeal is thus dismissed."
Following the said orders W.P.No.2163 of 2008 was also allowed by me on 21.11.2008 filed by a similarly placed person. It is also brought to my notice that the order passed in W.P.No.27036 of 2005 dated 13.4.2006 has been implemented by the department by promoting the petitioner therein with retrospective effect by order dated 16.7.2009, as the SLP filed was also dismissed.
8. In view of the above referred judgment of the Division Bench of this Court, this writ petition is allowed. The respondents are directed to pass necessary orders within a period of eight weeks from the date of receipt of copy of this order. No costs.
vr To
1. The Director General of Police, Chennai.
2. The Deputy Inspector General, Madurai Range.
3. The Superintendent of Police, Theni District