IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01.12.2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.33347, 33348, 36041, 40321, 40372, 42033, 44330, 45030 of 2006 and W.P.M.P.Nos.1 & 2 of 2006 M.Harikrishnan ... Petitioner in W.P.No.33347 of 2006 Vs. 1. State of Tamil Nadu Rep.by its Secretary to Government Home (Police III) Department, Fort St.George, Chennai 9. 2. The Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai 2. 3. The Director General of Police, Chennai 4. ... Respondents in W.P.No.33347 of 2006
PRAYER IN W.P.No.33347 of 2006: This Writ petition is filed under Article 226 of the Constitution of India to issue a writ of Declaration, direction in nature of writ to declare that the maximum age limit mentioned in Clause-II(a)(3) of the notification made by the 2nd respondent on 19.07.2006 in Na.Ka.No.A1/2626/2006 for recruitment to the post of Sub-Inspector of Police for the year 2006.
For Petitioner : Mr.K.Venkataramani
For Respondents : Mr.A.Edwin Prabakar, G.A.
COMMON ORDER
In all these cases, the writ petitioners who have aspired for applying to the post of Sub-Inspector of Police, (Men and Women) in the Tamil Nadu Police Subordinate Service for the year 2006, have chosen to challenge the notification issued by the second respondent dated 19.07.2006 in so far it relates to Clause II(a)(2), Clause (a)(3) and Clause II(a)(4)(ii).
2. According to the said notification, which prescribes age limit for the application states that the candidates belonging to Schedule Caste (SC) and Schedule Tribe (ST) as on 01.07.2006 should have completed 20 years and not crossed 33 years which means they should have born either on 01.07.1973 or subsequently. In respect of the Ex-Servicemen as on 01.07.2006 they should not have completed 45 years of age that means they should have born either on 01.07.1961 or subsequently. That apart, such persons who were discharged from military service should not have completed 3 years after discharge. In respect of others they should have completed 28 years of age having born on 01.07.1978 or thereafter.
3. The writ petitioner in W.P.No.33347 of 2006 has completed 36 years of age and he belongs to Schedule Caste (SC) community. The writ petitioner in W.P.No.33348 of 2006 who belongs to Backward Community (BC) has not completed 28 years of age, while as per stipulation in the advertisement, he should have born either on 01.07.1978 or subsequently.
4. In respect of the writ petitioner in W.P.No.36041 of 2006, the petitioner is an Ex-Serviceman, having retired after serving between 30.01.1986 to 31.10.2002, he has not completed 39 years of age. However, in his case he was discharged from army on 31.10.2002 and therefore, it is beyond 3 years from the date of discharge. Likewise, the petitioners in W.P.No.40372 of 2006 who belong to Other Community (OC), all have crossed 28 years of age, having born before 01.07.1978. Likewise, in W.P.No.42033 of 2006 who belonged to Backward Class community, was also born prior to 01.07.1978. The writ petitioner in W.P.No.44330 of 2006 who also belongs to Backward Class community was born on 13.05.1978 and therefore, he has crossed 28 years of age. The writ petitioner in W.P.No.40321 of 2006 who also belongs to backwards class community, was born on 06.05.1977 and therefore, he has crossed 28 years of age. Likewise, the writ petitioner in W.P.No.45030 of 2006 who also belongs to backward class community, was born on 06.05.1977, hence, not eligible having crossed the age 28 years of age.
5. It is based on the stipulation in the notification issued by the second respondent, the writ petitioners are not qualified to apply on the ground that they have crossed the age limit which is prescribed under the notification, either they are from the SC/ST category or OC category or Ex-serviceman category. The said portions of the notification was challenged on the ground that there was no recruitment made to fill up the post in Tamil Nadu Police Subordinate Service by direct recruitment except in respect of Teachers, Doctors and Police Constabulary, since there was a ban imposed as per G.O.Ms.No.212 Personnal and Administrative Reforms (P) Department dated 29.11.2001.
6. According to the petitioners, the ban was lifted by G.O.Ms.No.14 Personnal and Administrative Reforms (P) Department dated 07.02.2006 and till the said date nearly for more than 4 years, there was no recruitment. As per the announcement of the Governor of Tamil Nadu, the Government has issued G.O.Ms.No.98 Personnal and Administrative Reforms (S) Department dated 17.07.2006, directing the enhancement of upper age limit by 5 years, so as to enable the unemployed persons affected by such ban on appointment to apply. Therefore, according to the petitioners based on the said G.O. it must be 38 years in respect of the SC/ST candidates, 33 years in respect of other candidates, etc. When the general rules has been amended by extending 5 years period, the respondents ought to have amended the special rule before issuing the advertisement in respect of Sub-Inspector of Police.
7. According to the petitioners, it was due to the non-recruitment for the past 5 years, they were not able to apply for the post and it was not because of extending the period of 5 years in respect of the police service, the petitioners right of applying especially, when such a benefit is given under the general rule is affected. The impugned notification without amending special rules in respect of Police Subordinate Service by giving 5 years time is violative of Article 14 of the Constitution of India, especially, in the circumstance that in respect of the other government employees such an extension of an age limit has been given.
8. On the other hand, it is the case of the respondents in the counter affidavit that G.O.Ms.No.212 Personnal and Administrative Reforms (P) Department dated 29.11.2001 imposing ban on filling up of vacancies in the State and Subordinate Service by direct recruitment, was not made applicable in respect of appointment of Teachers, Doctors and Police Constabulary. According to the respondents, the Police Constabulary means not only from the post of Constables, it connotes the police force as such.
9. It is also the case of the respondents that in fact in respect of appointment of Sub-Inspector of Police (Women), there was recruitment made in 2001-2002 and that goes to show that the ban on recruitment in respect of services as per G.O.Ms.No.212 Personnal and Administrative Reforms (P) Department was not applicable to the police department. It is also stated by the respondents that in 2001-2002, 2002-2003 and 2003-2004, there has been a constant recruitment of Grade II Police Constables Men and Women etc.
10. Even in respect of the appointment of Sub-Inspectors of Police, the Government has ordered in the letter dated 14.12.2004 the recruitment of 571 Sub-Inspectors of Police for men and 44 Sub-Inspectors of Police for women and the same could not be carried out in time due to the reason that certain clarifications were pending and subsequent intervention of the assembly election and the final approval was given by the Government on 17.07.2006 based on which the notification was issued on 19.07.2006. Therefore, according to the respondents, the 2004 recruitment which was started in October 2004, was finally approved on 17.07.2006 and therefore, it cannot be said that there was no recruitment effected for the past 4 years.
11. According to the respondents, G.O.Ms.No.98 Personnal and Administrative Reforms (S) Department, dated 17.07.2006 applies only in respect of entering government services in respect of which the 5 years period have been relaxed so as to enable the unemployed youth, who were affected by the ban order on recruitment to have a chance and the same has no application to the Teachers, Doctors and Police Constabulary.
12. According to the respondents, since the G.O.Ms.No.212 Personnal and Administrative Reforms (P) Department dated 29.11.2001 imposing ban is not applicable for Teachers, Doctors and Police Constabulary, the benefits given in G.O.Ms.No.98 Personnal and Administrative Reforms (S) Department dated 17.07.2006 which is for those who are affected by the ban on recruitment and therefore the relaxation cannot be made applicable to the petitioners.
13. The contentions of the learned counsels appearing for the petitioners are:
The Police Constabularies mentioned in G.O.Ms.No.212 Personnal and Administrative Reforms (P) Department dated 29.11.2001, exempting the recruitment ban means only the post relating to Constables and that is not applicable to the Sub-Inspector of Police.
Even assuming that the term Police Constabulary includes the Sub-Inspector of Police, from 2001 onwards there has been no recruitment till the present advertisement and even assuming otherwise, the logic of giving exemption of 5 years to other Government appointments as per G.O.Ms.No.98 dated 17.07.2006 should be made applicable in respect of Sub-Inspectors also.
14. Even though Mr.Venkataramani learned counsel appearing for the petitioners would submit that in respect of the Sub-Inspector of Police (Women) for the year 2001-2002, that recruitment was started in January 2001 before the ban was imposed and therefore, it cannot be said that it is a recruitment made during the ban, a reference to the counter affidavit filed by the respondents would show that it remains the fact that in respect of the Sub-Inspector of Police (Women), nearly 961 vacancies of Sub-Inspectors of Police (Women)were filled up as per the recruitment done on 16.08.2002 and therefore, there is no substance in the contention as if, the said recruitment was started in January 2001. The further contention by him that the appointment of Sub-Inspector of Police for women is a distinct category by itself and for whom there is no service rule as such framed, is also not tenable, for, the issue involved in this case is not as to whether in respect of appointment of Sub-Inspector of Police for women any service rule is available or not but as to whether such recruitment was made during the period 2001-2005 or not is the question.
15. Mr.Venkataramani, learned counsel for the petitioner would contend by placing reliance on the Tamil Nadu Special Police Subordinate Services (Discipline and appeal) Rules, 1955 especially, with reference to Rule 15 which deals with the disciplinary proceedings, wherein, a reference is made by stating that the word Constable means Police Constable and Head Constable. Therefore, according to him the Constabulary is applicable only to the Constables and Head Constables as per the Tamil Nadu Special Police Subordinate Services (Discipline and appeal) Rules, 1955 and therefore, it should be taken as definition of Constabulary.
16. The learned counsel would also submit that if in respect of the other government servants, 5 years age relaxation can be given, for the purpose of enabling those persons to apply, the denial to the police personnel is arbitrary and illegal.
17. The learned counsel also would rely upon the judgement of the Honble Apex Court reported in 1991(3) SCC 47 to show that the government decision not to fill up the vacancy has to be on bonafide and appropriate reasons.
18. I have heard the learned counsel for the petitioner as also the learned Government Advocate who has made his submission.
19. The crux of the point that is involved in this case is that there was a ban on recruitment imposed by the government in 2001 that was by G.O.Ms.No.212 Personnel and Administrative Reforms (P) Department, dated 29.11.2001. The said G.O.which runs as follows:
“The Government has decided to effect economy in expenditure and accordingly direct that filling up of vacant posts shall be completely banned except certain categories of posts such as Teachers, Doctors and Police Constabulary which may be identified and declared as essential posts. Proposals for filling vacant posts considered essential by any Department will be placed before a Committee consisting of Chief Secretary, Finance Secretary and Secretary, (Personnel & Administrative Reforms).”
20. Therefore, the G.O. quoting the economy in expenditure as reason to ban on recruitment in respect of government services except Teachers, Doctors and Police Constabulary stating that the said three posts are identified and declared as essential posts.
21. By G.O.Ms.No.98 Personnal and Administrative Reforms (S) Department dated 17.07.2006 while lifting the ban which was by G.O.Ms.No.14 dated 07.02.2006 the said G.O.Ms.No.98 has relaxed a period of 5 years to enable the unemployed youth affected by the ban on recruitment to apply for government jobs specifically excluding the essential service namely Teachers, Doctors and Police Constabulary. The said G.O.Ms.No.98 runs as follows:
” The Government in their orders first read above, have issued orders banning the filling up of vacant posts in the State and Subordinate Services by direct recruitment, except in respect of certain categories of posts considered essential, such as Teachers, Doctors and Police constabulary. In their orders second read above, the above ban on direct recruitment was lifted with immediate effect.
2. His Excellency the Governor of Tamil Nadu, in his address in the Tamil Nadu Legislative Assembly on 24.05.2006, has announced that the upper age limit for entering into Government service will be relaxed by five years, to enable the unemployed youth affected by the ban order on recruitment to apply for Government jobs.
3. The Government after careful consideration, accordingly ordered that the upper age limit for entering into Government service shall be relaxed by five years, to enable the unemployed youth affected by the ban order on recruitment, to apply for Government jobs.
4. Necessary amendments to the General Rules for the Tamil Nadu state and Subordinate Services will be issued separately.”
22. In continuation of the said G.O. the Government has issued another G.O.Ms.No.152 Personnal and Administrative Reforms (S) Department, dated 18.09.2006, by applying the said relaxation of 5 years not only to the unemployed youth but also employed persons, so as to enable them to write the competitive examinations. Therefore, a reference to the said G.Os. show that the Government has treated the post of Teachers, Doctors and Police Constabulary as essential service from the beginning, namely from 2001 stating that the ban on employment will not apply to those cases. Now, it is in these contexts, relevant to find out what is the meaning of Police Constabulary. Even though, there is no doubt that the term used as Police Constabulary in G.O.Ms.No.212 and G.O.Ms.No.98 is general in nature and therefore, there is no difficulty in coming to a conclusion that the Police Constabulary cannot be restricted to the Constables and Head Constables alone, since a contention is raised on behalf of the petitioners, by referring to one of the terms in the Tamil Nadu Special Police Subordinate (Discipline and Appeal) Rules, it is relevant to consider the same in the context of the arguments advanced.
23. Admittedly, a reference to the said rule shows that there is no definition of the word “Police Constabulary” anywhere except while narrating in Rule 15(A), the term “Police Constabulary” is mentioned and in the bracket stating “Police Constables and Head Constables”. The said Rule 15(A) of the Tamil Nadu Police Subordinate (Discipline and Appeal) states as follows:
” Provided that members of the constabulary (Police Constables and Head Constables) shall be eligible to make one representation to the Government against the orders of dismissal or removal from service after exhausting the right of appeal.
Provided further that no application for review shall be entertained if it has not been made within a period of six months from the date of receipt of the order on which such application for review is preferred.”
A reading of the said rule shows that it is in respect of making one more representation to the Government against the order of dismissal or removal, the Police Constables and Head Constables are empowered and it was in that context the term “Constabulary” was included in the bracket Constables and Head Constables and the same cannot be taken a definition of the word.
24. The said term “Police Constabulary” within bracket using as “Police Constables and Head Constables” used in terms of dealing with the disciplinary proceedings against the Police Constables. Therefore, it cannot be treated as a definition of the word Police Constabulary. In the absence of any such definition, one cannot come to a conclusion that Police Constabulary should mean only the Constables and Head Constables and in my considered view, it should be given a general meaning as police personals who are governed by the said rules.
25. It is not even the case of the petitioners that the rule governs only the Police Constables and Head Constables and not the Sub-Inspectors and Inspectors. Therefore, there is no doubt in my mind that the term “Police Constabulary” means not only the Police Constables and Head Constables but also Sub-Inspectors. This irresistible conclusion has to be arrived at in the admitted circumstance of absence of the definition of the word and use of the word “Police Constabulary” in a general manner in G.O.Ms.No.212, G.O.Ms.No.152 and G.O.Ms.No.98.
26. It is also relevant to point out that when once the Government has decided Teachers, Doctors and Police Constabulary as essential service to whom ban on recruitment should not be applied, there is absolutely no reason to say that the Police Constabulary should include only Police Constable and Head Constable, which may result in the unfortunate conclusion that the Sub-Inspector and Inspectors are not essential service and only the Constables and Head Constables are in essential service. Therefore, the term Police Constabulary used in the said G.Os are not restricted to the Police Constables and Head Constables alone.
27. As I have stated earlier, when it is the specific stand of the respondents that in fact, in respect of appointment of Sub-Inspectors of Police (Women) the same was made for 2001-2002 and the recruitment was made on 16.08.2002, which was during the time of ban on recruitment. This shows that the Government has in fact treated the Sub-Inspector of Police as one of the exempted categories under the G.O. relating to ban on recruitment. The further facts stated in the counter affidavit which has not denied, in respect of recruitment of Grade II Police Constables (Men and Women) etc., in 2001-2002, 2002-2003 and 2003-2004 shows that there has been a continuous process of recruitment. Therefore, it cannot be said that Sub-Inspector of Police (Women) is a different category all together and cannot be compared to Sub-Inspector of Police (Men).
28. It may be also equally true that in respect of Sub-Inspectors (Men), there was no recruitment during the period 2001-2005 but the counter of the respondents shows that in fact, the Government by a letter dated 14.10.2004 has directed, the recruitment of 571 Sub-Inspector of Police Men and 44 Sub-Inspector of Police Women. There has been some clarifications on 22.11.2004 and which were received on 13.12.2005 from the Government and ultimately the Government has given final clarification in June 2006, based on which, the present notification came to be issued. When these facts stated in the counter affidavit are not denied, I do not see any reason in the contention of the learned counsel for the petitioners that there was no process of recruitment in respect of Sub-Inspectors during the said period. The reliance placed by the learned counsel for the petitioners on the judgement of the Honble Apex Court rendered in Shankarsan Dash Vs. Union of India reported in 1991(3) SCC 47 which has been reaffirmed by the Honble Supreme Court in the Union of India and others Vs. K.V.Vijeesh reported in 1996(3) SCC 139 does not in any way support the case of the petitioners.
29. The facts of the said case rendered by the Honble Apex Court in 1991(3) SCC 47 was that when the candidate was selected in the Combined Civil Services Examination held by Union Public Service Commission for various posts including Indian Police Service and on the merit list published by the respondents, the appellant before the Honble Apex Court was not qualified to be included in the I.P.S. category and he was offered Delhi, Andaman and Necobar Police Service in Police Service Group B and subsequently, by non filling up of various vacancies, there was an opportunity for him to be appointed in the reserved category and he made a representation which was turned down. It was in those circumstances, when it was the case of the Government that in respect of appointment to reserved category for which earlier the same process as that of the general category was followed, but the policy decision was taken after considering all relevant circumstances, based on which some relaxation was made. It was in those circumstances the Honble Apex Court has held that such a relaxation has resulted in discrimination, since by relaxation of not appointment, the petitioner before the Honble Supreme Court has lost his opportunity of being appointed. It was in that specific circumstance, the Honble Apex Court has held that such a decision not to fill up the vacancies must be taken on bonafide and for appropriate reasons. In fact, the Honble Apex Court has categorically held that the notification is only amounting to an invitation to the qualified candidates and even if they are selected, they do not acquired any right to the post. The Honble Apex court has further stated, unless the relevant recruitment rules indicates, there is no legal obligation on the part of the state to fill up all or any of the vacancies. But, if vacancies are ought to be filled up, discrimination should not be shown among the candidates. The relevant portions of the judgments of the Honble Apex Court in laying down the legal position, which runs as follows:
” 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitatiion to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vs. Subhash Chander Marwaha, Neelima Shangla Vs. State of Haryana, or Jatendra Kumar Vs. State of Punjab.”
This was again in the Constitution Bench of the Honble Apex Court reiterated in the judgement reported in 1996(3) SCC 139.
30. In the present case also in the absence of any rule under the Police Subordinate Service Rule making it compulsory on the part of the respondents to fill up vacancies every year, there cannot be a compulsion to the Government to fill up the vacancies, even though there was no ban on recruitment. The said judgement of the Honble Apex Court squarely applies to the facts and circumstance of the case. In fact, in the present case, as I have stated earlier, in respect of appointment of Sub-Inspectors (Women), the same took place in 2002 and steps were taken in 2004, for the purpose of filling up vacancies and after necessary clarifications, the present notification came to be issued. That apart, in 2001-2002, 2002-2003 and 2003-2004 appointments were made, in respect of the post of Police Constables.
31. It is not even the case of the petitioners that in respect of appointment of Sub-Inspector the same were made during this period and in the selection process, there has been a discrimination by which the petitioners are affected. In such circumstances, I am of the considered view that the contention of the learned counsel for the petitioners in this regard has no legal basis whatsoever.
32. There is one other reason in this case that prescription of qualification for any post is for the authorities to decide and jurisdiction of courts to interfere are limited, unless it is patently illegal and opposed to the legal norms. As I have enumerated earlier in respect of the other government services, 5 years age has been relaxed so as to enable the unemployed youths to have an opportunity of applying for the post and that can never be compared with appointment in the Police Department. It is not merely a disciplined force, but a force which requires to maintain not only law and order but also discipline in the society and in such circumstance, it cannot be as a matter of right claimed by such aspirants to the Police selection to have the age relaxation and there is no difficulty to come to the conclusion that Police Service is certainly different from any other government service and age criteria is necessarily an ingredient to which the stipulation regarding the age qualification is to be made by the authorities and relaxation cannot be claimed as a matter of right. On the face of the advertisement, there is no discrimination between the equally situated people in respect of making applications, for, the age qualification has been given to various set of people, of course, based on the concept of reservation which is a constitutional guarantee.
In view of the above said facts, the writ petitions fail and the same are dismissed. No Costs. Consequently, connected W.P.M.Ps.are closed.
To
1. The Secretary to Government
State of Tamil Nadu
Home (Police III) Department,
Fort St.George, Chennai 9.
2. The Chairman,
Tamil Nadu Uniformed Services
Recruitment Board,
Chennai 2.
3. The Director General of Police,
Chennai 4.
[SANT 8822]