IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 17/05/2006
CORAM
THE HON'BLE Miss JUSTICE K. SUGUNA
W.P.No.32507 of 2005
M. Murugesan .. Petitioner
-Vs-
1. The Director General of Police
Admiralty House
Government Estate
Anna Salai,
Madras-2.
2. The Deputy Inspector
General of Police
Madurai Range,
Madurai
3. The Superintendent of Police
Madurai District,
Madurai .. Respondents
Petition for issuance of a Writ of Certiorarified Mandamus to quash
para 12 of the instructions issued by the first respondent in Memo No.554/NGBI
(2)/95 dated 26.1.1996 and consequently to direct the respondents to
regularise the services of the Applicant in the post of Sub-Inspector of
Police pursuant to and in terms of the judgment of the Tribunal in para 72
(vii) in O.A. No. 1565 of 1995 and other cases of Police batch dated
13.11.1995 as he has been acting continuously as Sub-Inspector of Police
continuously and without any break from 26.6.1987 for more than 8 years
without taking into consideration the charge memo in PR NO.65/92 dated
2.7.1992 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D & A).
!For Petitioner : Mr. S.Vadivelu
^For Respondents: Mr. V.Subbiah
Additional Government Pleader
:O R D E R
The writ petitioner has initially filed O.A. No: 1026 of 1996 on the file of
the Tamil Nadu Administrative Tribunal,Chennai, for regularisation of his
service in the cadre of Sub Inspector of Police in terms of the order passed
in O.A No: 1565 of 1995 dated 13.11.1995 and the same has been transferred to
the file of this Honble Court and re-numbered as W.P. No: 32507 of 2005.
2. Originally the writ petitioner was directly recruited as a Grade I Police
Constable with effect from 15.04.1974. Subsequently, he was promoted as a
head constable with effect from 15.03.1982 and he was promoted as a Sub
Inspector of Police as out of turn promotion with effect from 26.06.1987 on a
temporary basis. In the year 1989, though an order of reversion had been
issued, by virtue of the interim order of stay granted by the Tribunal in O.A.
No: 820 of 1989 dated 13.0 6.1989, which was subsequently continued by an
order dated 31.08.1989 , it was not given effect to. To say in other words,
the petitioner and other similarly placed persons were continuing in the same
post of Sub Inspector of Police by virtue of the interim stay granted by the
Tribunal. Subsequently, a batch of cases viz. O.A. Nos: 1565 of 1995, etc.
were disposed of by the Tamil Nadu Administrative Tribunal by its order dated
13.11.1995 and as per that order the Tribunal directed that, the head
constables who have been acting as Sub Inspectors of Police for a period of
six years and above as on the date of the impugned memorandum without any
break or without any black mark or without any punishment whatsoever shall be
regularized as Sub Inspector of Police and seniority shall be fixed according
to the Rules. Subsequent to the orders of the Tribunal, the Director General
of Police has issued a memorandum dated 26.01.1996 in Memo No: 554/NGB.I
(2)/95. Paragraph 9 of that memorandum states that the police personnel who
are eligible for screening by the Range Promotion Board but are currently
under suspension or against whom disciplinary proceedings under Rule 3 (b) of
the T.N.P.S.S. (D & A) Rules of 1955 are now pending, screening should be
deferred and their cases should be considered after the disposal of such
proceedings. In other words, the memorandum states that against the police
personnel, who are eligible to appear before the Range Promotion Board for
screening, if any disciplinary proceeding is pending their cases has to be
deferred and their cases can be considered only after the disposal of such
proceedings. Basing on this memorandum, inspite of the specific orders of the
Tribunal, the petitioners service was not regularised in the cadre of Sub
Inspector of Police with effect from 26.06.1987. Subsequently, only with
effect from 13.02.1995, petitioners service was regularized in the cadre of
Sub Inspector of Police. Hence, he has filed the above
Original Application seeking regularization of service with effect from
26.06.1987 based on the orders of the Tribunal dated 13.11.1995 in O.A. No:
1565 of 1995, etc. batch.
3. Learned counsel for the petitioner has contended that even as per the
memorandum issued by the Director General of Police dated 26.01.1996, the same
has been issued giving effect to the orders of the Tribunal passed in O.A.
NO: 1565 of 1995, etc. dated 13.11.1995. As per the orders of the Tribunal,
the head constables who have been acting as Sub Inspector of Police for a
period of six years and above, on the date of the impugned memorandum, without
any black mark or without any punishment whatsoever their services should be
regularised in the cadre of Sub Inspector of Police and their seniority has to
be fixed according to the Rules. According to the learned counsel for the
petitioner, the date of the memorandum which was impugned in the batch of
Original Application is dated 22.02.1995 and thus, based on the orders of the
Tribunal, the service of the petitioner in the cadre of Sub Inspector of
Police has to be regularised with effect from the date of his original
promotion namely with effect from 1987. Learned counsel for the petitioner
further contended that the condition laid down in the above said order of the
Tribunal for regularisation is that as on 21.02.1995 the concerned person
should have served for a period of six years as a Sub Inspector without any
break or without any black mark or without any punishment whatsoever. But
overlooking this criteria, the Director General of Police has issued a
memorandum dated 26.01.1996 wherein one more condition has been added i.e. if
any disciplinary proceeding was pending against the individual he is not
eligible for screening by the Range Promotion Board. Since a charge memo
dated 2.7.1992 was pending against the petitioner, his services were not
regularized and he was given promotion only with effect from 13.02.1995. As
such, according to the learned counsel for the petitioner, the impugned
order/memorandum of the first respondent herein is contrary to the orders of
the Tamil Nadu Administrative Tribunal and hence, the same is liable to be set
aside and consequentially, petitioners service in the cadre of Sub Inspector
of Police has to be regularised taking into account his earlier promotion.
4. On the other hand, the learned Additional Government Pleader has contended
that even as per the order of the Tribunal also the head constables who are
acting as Sub Inspector of Police for a period of six years and above as on
21.02.1995 without any black mark or without any punishment are alone would be
eligible for consideration and the term punishment includes even pendency of
disciplinary proceedings also. As such, since a charge memo has been issued
to the petitioner on 2.7.1982, as per the Tribunals order also his service in
the cadre of Sub Inspector cannot be regularised with effect from 26.06.1987.
That apart, the learned counsel for the respondent has contended that when a
disciplinary proceeding is pending against a Government Servant even as per
the normal rule, his case cannot be considered for promotion till the disposal
of the disciplinary proceedings. Accordingly, the impugned memorandum passed
by the Director General of Police is not contrary to the orders of the
Tribunal and hence, the O.A./ W.P. has to be dismissed.
5. I have considered the submissions made by both the sides. Admittedly, the
applicant/writ petitioner is also one of the applicant in the batch of O.As
which was disposed of by the Tribunal by order dated 13.1.2005. In that
order, the Tribunal has directed that the services of the head constables who
have been acting as Sub Inspector of Police for a period of six years and
above as on 21.02.1995 without any black mark and without any punishment shall
be regularised as Sub Inspector of Police and their seniority will be fixed
according to the Rules. The respondent herein who has passed the impugned
memorandum is also a party to the said proceedings before the Tribunal. That
apart as against the order passed in the above said O.A. neither any writ
petition has been filed nor any clarification has been sought for by the
Department. As such, the order passed in the above O.A. has become final.
6. As per the orders of the Tribunal only three conditions are required to be
fulfilled by a head constable to be promoted as a Sub Inspector of Police viz.
1. he should have been acting as a Sub Inspector of Police for a period of
more than six years or more as on 21.02.19 95; 2. he should not have any
black mark and 3. he should not have suffered any other punishment. These
are the three conditions which are required for regularisation of the service
in the cadre of Sub Inspector. As far as the petitioner is concerned, as on
21.02 .1995 neither there was any black mark nor any punishment has been
imposed upon him. He has been issued with a charge memo dated 27.02.19 92.
But by way of a memorandum dated 26.01.1996, the Director General of Police
has stated that against those head constables, who are the beneficiaries of
the said O.A., if any disciplinary proceeding is pending, their cases has to
be deferred and it can be considered only after the disposal of the said
disciplinary proceedings. Based on this memorandum only, the service of the
writ petitioner has not been regularised in the cadre of Sub Inspector of
Police. When there is a specific order of the Tribunal as stated above, by
way of implementing it, the respondent cannot introduce one more condition
which has not been prescribed by the Tribunal in its order and thereby the
applicants in the O.A. cannot be denied of their benefits that flows from the
order of the Tribunal. The Supreme Court in the judgment reported in 1994
vol.26 Administrative Tribunals Cases 448 (S. Nagaraj and others vs. State
of Karnataka and others) had held that an order of the competent Court, even
though erroneous, mistaken or improperly obtained cannot be substituted or
clarified or modified by the executing authority according to their own
understanding of the order. In this case, the Department had neither sought
for a clarification from the Tribunal nor had filed an appeal against that
order. Therefore, it is very clear that the order of the Tribunal has to be
implemented as it is and no new condition can be imposed by the respondents.
On the facts of the case on hand, a charge memo has been issued to the
petitioner on 2.7.199 2 for an occurrence which took place in January 1990 and
final order has been passed on 13.10.1997 imposing a punishment of reduction
in time scale of pay by two stages for a period of two years i.e. punishment
has been imposed after the lapse of 7 years. As per the judgment of the
Supreme Court reported in 1995 2 SCC 570 (State of Punjab V. Chammanlal
Goyal) also when there is undue delay in the finalisation of disciplinary
proceedings, the delinquent is entitled for promotion.
7. Hence, on the above stated facts and on the settled legal position, I am
of the opinion that the petitioner is entitled for regularisation of his
services in the cadre of Sub Inspector of Police basing on the Tribunals
order dated 13.11.1995 passed in O.A. NO: 1565 of 19 95, batch and also for
other consequential benefits. This writ petition is allowed as prayed for
without any orders as to the costs.
gp
Copy to :
1. The Director General of Police
Admiralty House
Government Estate
Anna Salai,
Madras-2.
2. The Deputy Inspector General of Police
Madurai Range,
Madura.i
3. The Superintendent of Police
Madurai District,
Madurai.