THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE Tmt.JUSTICE V.BHAVANI SUBBAROYAN
W.A. No.1186 of 2017
and
C.M.P. No.16450 of 2017
1. State of Tamil Nadu Rep. by its Secretary to Government (Police - 3) Department, The Secretariat Chennai - 600 009
2. The Director General of Police Dr.Radhakrishnan Salai Mylapore, Chennai - 600 004 .. Appellants versus G.Saiganesh .. Respondent Civil Miscellaneous Appeal filed under Section 15 of the Letters Patent against the order dated 18.05.2017 made in W.P. No.6433 of 2017.
For Appellants : Mr.V.Jayaprakash Narayanan Spl. Govt. Pleader (Writs)
JUDGMENT
(Made by S.MANIKUMAR, J.) On 18.01.2008, the respondent has been recruited as Sub Inspector of Police by the Tamil Nadu Uniformed Services http://www.judis.nic.inRecruitment Board, and posted at Tamil Nadu Special Police Unit in XIII Battalion A Company, Poonamallee (Category-III) and he successfully completed training on 17.01.2009. After completion of five years of service in Tamil Nadu Special Police, Sub Inspectors of Police, have submitted representation to the concerned authority, for grant of conversion from Category III to Category-I (Law & Order).
2. According to the respondent, there was no response. Hence writ petition No.8982/2015 was filed and a Hon'ble Division Bench of this court, in W.P. No.8982/2015, dated 13.10.2015, ordered as here under:
" We thus direct the respondents to consider the representations of the petitioners within a maximum period of six weeks from the date of receipt of this order. We may note that it makes no difference that the relevant rules having been framed or that according to the respondents it is a matter of posting, since it cannot be disputed that up to the year 2007, this practice has been followed by issuing G.Os, each time claiming to be a one- time measure."
3. Pursuant to the above said order, the Director General of Police, Chennai, in his letter dated 16.12.2015, sent a proposal for http://www.judis.nic.inapproval to the Government stating that, the whole batch of 2008, i.e. 598 direct recruit Sub Inspectors of police (Armed Reserve and Tamil Nadu Special Police Unit) and 60 promotees, Sub Inspectors of Police of Armed Reserve/Tamil Nadu Special Police, totaling 658 Sub Inspectors of Police, be transferred to Taluk Police, as done in the earlier occasion, as one time measure, subject to the following conditions: (i) Should be a Graduate; (ii) Should not have completed 40 years of age; (iii) Should have put in five years of service as SI of Police (AR/TSP); and (iv) Should have unblemished record of service.
4. The Director General of Police, Chennai, in his proposal, has further added that the directly recruited Sub-Inspector of Police of 2006 batch appointed in 2008, have completed, a tenure of five years, as on January 2013. Hence, the cut off date for age criteria, may be fixed as 1.7.2013. Subsequently, in the letter dated 25.1.2016, DGP, Chennai, has furnished the vacancy position of the Sub-Inspectors of Police (Taluk), as detailed below:
Existing vacancy : 237 Vacancies likely to arise in 2016 : 277 Total : 514
5. Accepting the proposal, State Government have issued G.O. Ms. No.249 Home (Police.3) Department, dated 29.2.2016, http://www.judis.nic.indirecting that, 514 directly recruited Sub-Inspectors of Police (Armed Reserve/Tamil Nadu Special Police), appointed in the year 2008, be appointed as Sub-Inspectors of Police (Taluk) by transfer, in exemption to the orders issued, in G.O. Ms. No.1598, Home (Police.3) Department, dated 5.11.1997, as one time measure, subject to fulfilling the conditions laid down in G.O. Ms. No.1512, Home (Police.3) Department, dated 9.10.1996 and the guidelines for selection, as stipulated in G.O. Ms. No.446, Home (Police.3) Department, dated 27.5.2003.
6. Before the writ court, the respondent has contended that most of his batch mates have been sent to Taluk Police Stations. Therefore, he made a representation to the concerned authority, to transfer to the Taluk police. Responding to the above, the Director General of Police, vide Memorandum dated 25.11.2016, has turned down the same, on the grounds, that a case in C.C.B. Crime No.113/2010 has been registered against the respondent, on the file of Suburban Police CCB, under Sections 406 and 420 IPC and that, he has been arraigned as accused No.3. Charge Sheet filed on 19.12.2012, on the file of the learned Judicial Magistrate No.1, Poonamallee, has been taken on record, in C.C. No.348/2012 and that trial is in progress. The Director of General Police, Government of Tamil Nadu, in Memorandum dated 25.11.2016, has further stated that disciplinary proceedings has been deferred, till the conclusion of the criminal case, and further stated that the respondent, has not fulfilled the conditions for appointment, as Sub Inspector of Police (Taluk), by transfer, and that therefore his request has been turned down.
7. Being aggrieved by the same, the respondent has filed W.P. No.6433/2017, for a Writ of Certiorarified Mandamus, to quash the Memorandum dated 25.11.2016 and prayed for a direction to the Director General of Police, Chennai, to grant conversion to him, from his present category, i.e. Tamil Nadu Special Police, III Battalion, to Category I/L&O, and for further orders.
8. After hearing the learned counsel for the parties, and taking note of a decision of a Hon'ble Division Bench of this court in The Commissioner of Transport, Chepauk, Chennai - 5 vs. A.Afsalkhan in W.A. No.1764 of 2011 dated 26.12.2012, the writ court, by order dated 18.05.2017, has directed the Director General of Police/2nd appellant herein, to transfer the writ petitioner from Tamil Nadu Special Police (Category III) to Law and Order (Category I), within a period of eight weeks from the date of receipt of a copy of the order.
9. Being aggrieved, State of Tamil Nadu, represented by Secretary to Government, (Police-3) Department, Secretariat, Chennai, and the Director General of Police, Tamil Nadu, have preferred the instant appeal, contending inter alia that the writ court has failed to consider that Government, in G.O. Ms. No.249 Home (Police.3) Department, dated 29.2.2016, have issued orders transferring, 514 directly recruited Sub Inspectors of Police (Armed Reserve/Tamil Nadu Special Police), subject to the following conditions, namely, i) should be a Graduate, ii) should not have completed 40 years of age, iii) should have put in five years of service as SI of Police (AR/TSP) and iv) should have unblemished record of service.
10. Further contentions have been made, that the writ court, has failed to consider that in the criminal case, registered against the respondent in Chennai Suburban CCB Crime No.113/2010 for offences, under Sections 406 and 420 IPC, he has been arraigned as Accused No.3. Charge Sheet has also been filed. Further contention has been made that, as per the recommendation of the Unit Officer and the decision of the Selection Committee, the respondent, has not been considered for appointment, as Sub Inspector of Police (Taluk), by transfer.
11. On 12.09.2917, when the matter came up for hearing, we directed Mr.Jayaprakash Narayanan, learned Special Government Pleader/Government Pleader, to ascertain the details of the criminal case registered, in the year 2010.
12. Reverting, learned Special Government Pleader/Government Pleader, submitted that charges have been framed against the respondent in C.C. No.348/2012 on the file of learned Judicial Magistrate - I, Poonamallee, and that the same are extracted here under:
1) $dthp 2007?y; thjpaplk; vjphp A1 Kjy; A3 vjphpfs; A1 nfhtpe;juh$;. rhafnzc&;. rhay l;Rkp K:tUk; A1 vjphpapd; tPl;oy; itj;J rhl;rpfs; KUnfrd; ghujp fnzc&; Kd;dpiyapy; U:/25 yl;rk; th';fp bfhz;L. jpUts;Sh; khtl;lk;. jpUntw;fhL tl;lk;. brd;dPh; Fg;gk; fpuhkk;. Mto nuhl;oy; 23 brd;l epyj;ij fhz;gpj;Jtpl;L. jpUts;Sh; khtl;lk;. g[ypa{h; fpuhkk;. rh;nt vz;/213-5?y; 0/23 brd;l; ,lj;ij 23?11?2006?e; njjp jpUts;Sh; khtl;l rhh;gjpthsh; mYtyfj;jpy; Mtz vz;/3617-2006 14 brd;l; epyj;ija[k; (kjpg;g[ U:/31.500-?). 03?07?2007?y; Mtz vz;/11724-07?y; 0/9 brd;l; epyj;ij kjpg;g[ U:gha; 21.000-? gjpt[ bra;J bfhLj;J U:/25 yl;rk; nkhro bra;Js;shh;/
2) ork;gh; 2006 tUlk; thjpaplk; brd;l; jhk!; kt[z;l; gl;nuhL mUfpy; xU tPl;Lld; Toa ,lj;ij A1 vjphp nfhtpe;juh$; kw;Wk; A2 vjphp rhaf nzc& http://www.judis.nic.in ,UtUk; thjpf;F fhz;gpj;Jtpl;L U:/10 yl;rk; vd;W tpiy Twp gzj;ij vjphp jd; tl;oy; itj;J A-1, A-2 vjphpfs; jyh U:/5 yl;rk; bgw;Wf;bfhz;L thjpf;F gjpt[ bra;J jUtjhf Twp Vkhw;wpa[s;sdh;/ thjp Me;jpu khepyj;ij nrh;ejth;. brd;id kw;Wk;
Rw;Wtl;lhu';fis gw;wp mwpahjth;. thjpapd;mwpahikia gad;gLj;jp vjphpfs; K:tUk; ek;gpf;if nkhrk; bra;Js;sdh;/
3) nkYk; 2007?k; tUlk; $dthp khjj;jpy jpUntw;fhl;oy; fhkhl;rpg[uk; gpshl; vz;/20?y; 1950 rJu mo rh;nt vz;/191 Mtz vz;/6230-1997 ,lj;jpd; chpikahsh; ncwkhtjp vd;gthpd; ,lj;jpd; xhp$pdy; gj;jpuj;ija[k;. ncwkhtjp-unkc&; vd;gtUf;F (tpw;gjw;F) gth; bfhLf;fg;gl;l xhp$pdy; gj;jpuk; 5274-2006 ,uz;ila[k; thjpaplk; bfhLj;J ek;gpf;if Vw;gLj;jp nkw;go ,lj;ji thjpapd; bgahpy; gj;jpuk; bra;J jUtjhf U:/5 yl;rk; bgw;Wf;bfhz;L gjpt[ bra;J juhky; Vkhw;wp A1 vjphp nfhtpe;juh$; bgahpYk;. 750 gj;jpuk; bfhLj;Jtpl;L U:/5 yl;rk; Vkhw;wpa[s;shh;/ vdnt A-1 Kjy; A-3 tiu vjphpfs; gphpt[ 406. 420 ,/j/r/? gphpt[fspd; fPG; jz;of;fg;gl ntz;oath;fshfpwhh;fs;/
4) $dthp 2008k; tUlk; thjpapd; fzth; gl;L bt';fl rhk;grptuht; itu tpahghuk; bra;gth; ,th;
K:ykhf A1 vjphpf;F K:d;W j'f nkhjpu';fs; kw;Wk;
A2 vjphp rha;fnzc&f;F xU itu nkhjpuKk;. A3 vjphp rha;yl;Rkpf;F xU itu K:f;Fj;jpa[k;. (U:/2 yl;rk;
kjpg;g[s;sij) thjpaplk; th'fpf;bfhzL jpUg;gp bfhLf;fhky; Vkhw;wpa[s;shhfs;/ vdnt gphpt[ 406. 420 c-, 34 ,/j/r/ A-1, A-2 kw;Wk; A-3 jz;of;fg;gl ntz;oath;fshfpwhh;fs;/
13. Inspector of Police, Suburban CCB, Chennai, dealing with the above case, and present in court, submitted that all the witnesses, except PW1, have been examined/cross examined.
14. Material on record discloses that the respondent has been enlisted as direct Sub Inspector of Police, by the Tamil Nadu Uniformed Services Recruitment Board and posted at Tamil Nadu Special Police in XIII Battalion A Company, Poonamalle (Category- III), Head Quarters at Poonamallee, on 18.01.2008.
15. Government have issued G.O. Ms. No.249 Home (Police.3) Department, dated 29.2.2016, appointing 514, directly recruited Sub Inspectors of Police, Armed Reserve/Tamil Nadu Special Police appointed in 2008 as Sub Inspectors of Police (Taluk) by transfer, as one time measure, subject to the said conditions, extracted supra.
16. Condition No.4 states that the Sub Inspectors of Police should have an unblemished record of service, and that the respondent is facing a criminal case in C.C. No.348/2012 on the file of learned Judicial Magistrate - I, Poonamallee.
17. According to the learned Special Government Pleader, the petitioner is the only person, facing criminal case and not transferred to Taluk police. He further submitted that there are others, who had suffered punishment/under suspension, and facing department proceedings. He submitted that the respondent does not have an unblemished record of service, and rightly not considered for transfer, but the writ court, has erred to consider the above. For the above said reasons, the appellants have sought for reversal of the order impugned.
18. Heard Mr.V.Jayaprakash Narayanan, learned Special Government Pleader for the appellants and perused the material on record.
19. For better administration, in any department, persons against whom disciplinary proceedings/criminal cases are pending, are posted in insignificant posts/places. In police department, there are several units, such as Special Branch, Law & Order, Crime Branch, Q Branch, Security Branch, Armed Reserve, Tamil Nadu Special Police and so on and so forth. Tamil Nadu Special Police has no direct link with the public, except to act, when exigency arises.
Said unit, is not very significant, as that of other Units of the police force, say for instance, Special Branch, Q Branch, Law & Order, Crime and such other units.
20. In the case on hand, respondent is a graduate, not completed 40 years of age, put in, nearly 9 years of service, as Sub Inspector of Police, in Tamil Nadu Special Police and that there is pendency of criminal case against him, which according to the appellants, does not satisfy, one of the conditions, unblemished record of service, to be transferred to Taluk Police, as Sub Inspector of Police.
21. Initiation of prosecution under Section 406 and 420 IPC is inter se, between the parties. Record of service, as averred by the appellants shows that from 2008 till date, the department has not attributed any other misconduct, on the part of the respondent, in discharge of his duties, as Sub Inspector of Police, warranting retention, in the same place, namely, Tamil Nadu Special Police, but cited the pendency of the criminal case, since 2012, as not satisfying the condition, unblemished record of service.
22. Keeping a policeman, continuously, in the same place, would not serve the best interest of Police Department, we are of the view that for better administration, except in certain units, where policemen have to study the area, modus operandi of the criminals, where special training is given, for any specific purpose, like the commandos, Task Force, and so on so forth, and wherever, there are chances of developing a kind of link, policemen, should be transferred periodically.
23. On the facts and circumstances of the case, when FIR has been registered in 2010, charge sheet filed in 2012, and when the department has not intended to impose any penalty, by initiating departmental proceedings, we are of the view that like the others who satisfy the requirements, the respondent can also be transferred to Taluk Police, and be given with some assignment, or post him, in an insignificant post, in Taluk Police.
24. Material on record further discloses that, even the Director General of Police, Government of Tamil Nadu, has thought it fit not to initiate disciplinary proceedings, for any alleged misconduct, pending disposal of the criminal case. On the other hand, it is the categorical admission that disciplinary proceedings would be deferred till the conclusion of criminal case, which decision of the authority only indicates that other than the criminal case registered against him, respondent has not committed any serious misconduct, in the discharge of his duties.
25. As per the version of Mr.V.Jayaprakash Narayanan, learned Special Government Pleader, only one witness, PW1 alone has to be cross examined. Even taking for granted that the respondent is transferred to any one of the Taluk Police, in the State of Tamil Nadu, we are of the view that there would not be any impediment in the trial, as examination of all the witnesses is almost over. No doubt, the respondent has been charged under Section 406 and 420 IPC, but as per the law of jurisprudence, until a person found guilty, he is presumed to be innocent.
26. Unblemished record of service, may be one of the factors to be considered, for transferring persons from Tamil Nadu Special Police to local police, as one time measure, but on the facts and circumstances of this case, we have to consider as to whether, the gravity of the offence, say for instance, murder, rape, and such other heinous offences, whether the offence is against the State, or inter se between private parties, and whether the same are in the stage of accusation or attained finality. Needless to state that on the facts and circumstances of this case, the department has not even chosen to suspend the respondent.
27. For the above said accusations, if the department has taken a decision to retain him in Tamil Nadu Special Police, for a longer period, when he was due for transfer from 2016, now, it is more than one year. For the reasons stated supra, we are of the view that the court, cannot be said to have exceeded in its jurisdiction, in issuing suitable directions. Though we are not inclined to accept the decision of the writ court, based on Afsalkan's case, for the reasons stated by us, we sustain the order, impugned.
28. Director General of Police, Government of Tamil Nadu, 2nd respondent is directed to transfer the respondent to any place in Taluk Police, and direct practical training for six months, as required and done for others, within a period of four weeks from the date of receipt of a copy of this order.
With the above direction, Writ Appeal is disposed of. However, there shall be no order as to cost. Consequently, the connected civil miscellaneous petition is closed.
Internet : Yes asr/-
(S.M.K., J.) (V.B.S., J.) 13.09.2017 S. MANIKUMAR, J.
AND V.BHAVANI SUBBAROYAN, J.
Asr W.A. No.1186 of 2017 and C.M.P. No.16450 of 2017 13.09.2017