G.Malathi v. Government of Tamilnadu

ORDER While replying to the discussion relating to the "Demand No.22-Police" on 30.08.2006 in the Legislative Assembly, the Hon'ble Chief Minister has made, among others, the following announcement:-

¶2In pursuance of the announcement made by the Hon'ble Chief Minister, the Director-General of Police has sent necessary draft notification for amending the rule 3 (d) (iii) of the Special Rules for the Tamil Nadu Police Subordinate Service insofar as it relates to deleting of the Range Promotion Board tests conducted to Head Constables/Head Constables (Armed Reserve) for promotion as Sub-Inspectors of Police/Sub-Inspectors of Police (Armed Reserve).

¶3The Government, after careful examination of the proposal of the Director-General of Police, have decided to accept the same. They accordingly direct that the provision relating to conduct of Range Promotion Board tests, viz., written test and viva-voce examination including drill test to Head Constables/Head Constables (Armed Reserve) for promotion as SubInspectors of Police/Sub-Inspectors of Police (Armed Reserve) in rule 3 (d) (iii) of the Special Rules for the Tamil Nadu Police Subordinate Service be deleted. Consequently, the Government direct that promotions to the Head Constables/Head Constables (Armed Reserve) as Sub-Inspectors of Police/Sub-Inspectors of Police (Armed Reserve) be granted based on seniority and service records.

¶4Necessary amendments to the Special Rules for the Tamil Nadu Police Subordinate Service will be issued separately by the Government in the Home (Police.VI) Department.

¶54As far as the 1991 batch Grade I Women Police Constables are concerned, they have been given promotion as Head Constables in the year 2003 and 2004 and thereafter, it was decided to notionally upgrade them as Head Constable with effect from the year 1999 without monetary benefits and thereafter, they were promoted as Special Sub Inspectors of Police in 2009 with monetary benefits from the date of G.O as a onetime measure and as a special case in terms of G.O.(Ms.) No.152, Home (Police III) Department, dated 25.02.2011.

¶55Under Adhoc Rules read with Notification given in G.O.Ms.No.2566, Home Department, dated 01.11.1974, exemption was given to the General Rules inasmuch as the aforesaid Rule was announced for the first time in the year 1974 with effect from

05.09.1973.

¶56At that point of time, there was no scope for promotion to the post of Women Police Constable Grade I and therefore, it was construed that there was no necessity to distinct between the Grade I and Grade II Police Constables as the word and figure "Grade II" were against the Women Police Constables.

¶57Further, the appointment under Adhoc Rules as notified by G.O.Ms.No.2566, Home Department, dated 01.11.1974 was intended to create a temporary post for the Women Police Wing in the Madras City. The issue of aforesaid G.O.Ms.No.2566, Home Department, dated 01.11.1974 proceeded the issue of G.O.Ms.No.2382, Home Department, dated 05.09.1973, G.O.Ms.No.1048, Home Department, dated 27.04.1974 and Rc.No.39409/SR.2/73 of the Inspector General of Police, dated 01.11.1973 & 23.04.1974.

¶58The qualification prescribed for the Women Police Constable which was amended by G.O.Ms.No.1203, Home (Police III) Department, 08.08.1995 was a mere pass in S.S.L.C. The petitioners were appointed with a minimum S.S.L.C. pass. Therefore, the petitioners cannot claim any advantage.

¶59If the arguments of the learned counsel for the respective petitioners are accepted, the petitioners being appointed as Women Police Constables will be entitled to be promoted as Head Constables within 5 years and thereafter as Special Sub Inspectors / Sub Inspectors of Police within a period of next 10 years, whereas, their male counterparts would take about 25 years to be promoted as Special Sub Inspectors / Sub Inspectors of Police.

¶60As the petitioners who were appointed as Women Police Constables through direct recruitment in the years 1981 and 1991 were promoted as Head Constables in the years 1996 & 1997 and 1999 and as Sub Inspectors of Police in the years 2003 &2004 and 2009 respectively are concerned, they cannot claim any further benefit merely because they were recruited as Women Police Constables.

¶61It would be fallacious to treat the petitioners as superiors to their male counterparts who were appointed as Grade II Police Constables as the appointment of the petitioners in the years 1981 and 1991 was only at the entry level with a minimum educational qualification of SSLC.

¶62If the contention of the petitioners are accepted, an anomalous situation would arise. Following Chart demonstrates the position:- Batch Head Constable Special Sub Inspector / Sub Inspector Inspector 1981 batch Gr.I W. P.Cs. 1986 1996 2006 1991 batch Gr.I W. P.Cs. 1996 2006 2016

¶63It would confer undue advantage on the petitioners. The Government of Tamil Nadu had already considered the case of the petitioners by promoting the 1981 batch Women Police Constables as Head Constables with effect from the years 1996 & 1997 and the 1991 batch Women Police Constables as Head Constables with effect from the year 1999 and thereafter by promoting as Sub Inspector with effect from the years 2003 & 2004 and 2009 respectively. They also have been given notional benefits in terms of G.O.(Ms.) No.152, Home (Police III) Department, dated 25.02.2011."

¶10The learned counsel appearing for the petitioners very fairly submitted that the reliefs sought for by the petitioners in these writ petitions will also be squarely covered by the decision of this Court in the batch of writ petitions referred above.

¶11The learned Government Advocate by placing reliance on the Full Bench judgment of this Court dated 04.02.2022 in W.A.Nos.3748 of 2019 etc., batch [State of Tamil Nadu Vs. C.Srinivasan] submitted that the petitioners have preferred these writ petitions claiming for deemed upgradation and in view of the decision of the Hon'ble Full Bench, the question of deemed upgradation does not arise and only if the petitioners satisfy the required period of service in each categories, they will be entitled for the upgradation. It is useful to extract Paragraphs 35 to 42 of the said judgment, which read as follows: "35. The Government Orders issued from G.O.Ms. No. 844, dated 3.6.1997 upto G.O.Ms. No. 15, dated 7.1.2010, brought about a time bound upgradation scheme to the rank of Head Constable and to the post of Special Sub-Inspector of Police respectively. For those Constables who are seeking for a benefit under these G.Os, they are bound to satisfy the requirements stipulated under these G.Os. For this purpose, the amended Paragraph 4 of G.O.Ms. No 844, dated

3.6.1997 makes it very clear that only those Grade II men Police Constables who have completed 10 years of service will be promoted as Grade I Police Constables. Similarly, only those Grade I men Police Constables who have completed 5 years of service will be promoted as Head Constables. Since this process was undertaken in 4 phases stretching from 1997-98 upto 2000-2001, the manner in which the promotion to the post of Head Constable should be granted was provided in the said G.O. itself. The relevant tabular column has also been extracted supra.

¶36For the first time, by virtue of G.O.Ms. No. 937, dated

21.7.1998, the post of SSI of Police was created. There is no such post that is available under the Service Rules and it was done only to motivate/encourage Head Constables who have stagnated in that post for a considerable time as exams were not conducted for them for promotion to the post of Sub-Inspector between 1985-1996 due to some administrative reasons. Hence, the focus under G.O.Ms.No. 937, dated 21.7.1998, was the stagnated Head Constables who were eligible for promotion to the post of Sub Inspector after writing the necessary examination. The G.O. made it very clear that for a person to claim for upgradation to the post of SSI of Police, 10 years of service as Head Constable was mandatory without any exception. The Head Constable who is upgraded to the post of SSI of Police will get the same pay and allowance as that of the Sub Inspector and duties will be specifically allotted to them as directed by the Director General of Police. The relevant G.Os. makes it very clear that the concerned constable should have put in 25 years of overall service out of which 10 years of service as Head Constable was made mandatory to become entitled for upgradation to the post of SSI of Police.

¶37The above position was properly appreciated by the earlier Division Bench in W.A. (MD) Nos. 361,364 and 367 of 2012. The effect of the GOs was applied to the petitioners therein and they were held not entitled to be promoted to the post of Head Constables from an anterior date. With due respects to the earlier Division bench which passed the order in Review Application (MD) Nos 10 to 12 of 2013, the judgment of the Division bench in W.A.(MD) Nos 361,364 and 367 of 2012 ought not to have been reviewed on two counts and they are: a) By the time the Review Applications were taken up for hearing, the very same division bench had taken a contrary view in V.Samy case while passing an order on 17.6.2013 and by virtue of reviewing the order, a co-equal bench has overruled the earlier order passed by the Division Bench and b) The review was allowed by relying upon the earlier orders passed in W.P.(MD) No 27036 of 2006 and W.A.(MD) No. 500 of 2008, which orders were not dealing with the scope of G.O.Ms.No. 844, dated

3.6.1997 and those orders were passed by relying upon Rule 25 (b) of the Rules. This was made clear by the earlier Division Bench while passing orders in W.A

(MD).Nos. 361,364 and 367 of 2012 and inspite of the same, the very same order was used to review the earlier judgment of the Division Bench.

¶38A careful reading of the Government orders clearly brings out the fact that there is no scope for any deemed upgradation. The G.Os. makes it abundantly clear that the concerned Police Constable or Head Constable, as the case may be, should have held the relevant post for a fixed period of time in order to claim for upgradation. If the police personnel were aggrieved by such a stipulation, they ought to have challenged the Government Orders. No one has chosen to challenge the G.Os and an attempt is being made to twist the G.Os. to suit their requirement. This Court has to necessarily understand the G.Os. in the plain language used in those G.Os. and see if the concerned police personnel is satisfying the requirement. When a benefit is conferred, the requirements to get such a benefit must be satisfied. There is no scope for a deemed satisfaction and what is expected is the actual satisfaction of the requirements. The concerned police personnel want these G.Os. to be implemented in such a way that upon completing a fixed period namely 25 years of overall service, they would get upgradation as Grade I Constable automatically and thereafter, as Head constables automatically and ultimately as SSI of Police also automatically. There is no indication in the G.Os for such automatic or deemed upgradation.

¶39The Division Bench in V.Samy case at paragraph 4 of the order has given a finding as if the actual service of 5 years (it should have been 10 years) as Head Constable is not required for upgradation as SSI of Police. This finding of the Division bench runs completely contrary to the mandatory requirement found in G.O.Ms No. 937, dated 21.7.1998. At paragraph 4 of the concerned G.O., completion of 10 years service as Head Constable is made mandatory, to be considered for upgradation to the post of SSI of Police. In view of the same, the finding given by the Division Bench in V.Samy case which formed the basis for granting the remedy, is not correct.

¶40The finding of the later Division Bench in V. Ramachandran case to the effect that 10 years of qualifying service in the rank of Head Constable out of the total service of 25 years to be considered for the upgradation to the post of SSI of Police is the correct view.

¶41For the sake of clarity, we hold that the benefit of upgradation to the next level of promotion can be granted only by taking into account the completion of the qualifying service in each level of rank as prescribed in the above G.Os. There is no scope for any deemed upgradation or deemed promotion to the next level/ rank and such an interpretation of the G.Os will cause violence to the plain language that has been used in those G.Os. Every upgradation involves financial implications and the sanction is accorded by the Finance Department as per the terms of the G.O. by anticipating the exact increase in the expenditure by virtue of the upgradation/promotion. If such deemed upgradation or deemed promotion is read into the G.Os., it will not only go beyond the scope of G.Os., but also will end up in granting the benefit to those persons who are not covered under the Government order. The direct consequence will be that there will be a huge outflow of expenditure than what was expected through the beneficial scheme and it will put a lot of strain in the State's exchequer.

¶42In view of the above discussion, we proceed to answer the second question that has been referred to this Full Bench hereunder:-

"We hold that the Division Bench in V.Samy case did not lay down the law correctly and we uphold the law laid down in V. Ramachandran case to the extent that there is no deemed upgradation or deemed promotion contemplated in the relevant Government orders and the benefit of upgradation/promotion to the next level can be granted/claimed only on completion of the qualifying service in each level/rank as prescribed in the relevant Government Orders. At the risk of repetition, insofar as understanding the expression "retrospective operation" is concerned, we hold that The Government Orders operate prospectively but it imposes/grants new results in respect of a past event. In other words, the Government Order operates forward but it looks backward and in that it attaches new consequences for the future to an event that took place before the Government Order was issued. If the Government Orders are understood in this perspective, there is no need to get into the issue of "retrospective operation. Thus, we are of the view that the Division Bench while rendering the judgment in V.Ramachandran case has dealt with the Government orders in its proper perspective and the judgment in V.Samy case is hereby overruled".

¶12From the above decision of the Hon'ble Full Bench, the benefit of upgradation to the next level of promotion can be given only on completion of qualifying service in each level of rank. Further, a person should have put in 25 years of service to be considered for upgradation as Special Sub-Inspector of Police out of which they should have 10 years of qualifying service in the rank of Head Constable.

¶13From the above decisions, it is clear that a person appointed in the category of Grade II Police Constable or as in the present case in the category of women Police Constable only after completing 10 years of service, they will be eligible for upgradation to the post of Grade I Police Constable and only after completion of 15 years of service, the police personal will be entitled for upgradation to the post of Head Constable. Therefore, the claim of the petitioners that immediately on the completion of 5 years, they will be entitled for upgradation to the post of Head Constable and therefore, the upgradation granted in the year 2002 is wrong and the same has to be revised with effect from 1991 cannot be sustained.

¶14In view of the above, the reliefs sought for in these writ petitions fails and accordingly, these writ petitions are dismissed. There shall be no order as to costs.

23.10.2024 Index:Yes Non-speaking order gpa To

¶1The Secretary to Government Government of Tamil Nadu Home (Police) Department Secretariat Chennai - 600 009

¶2The Director General of Police Tamil Nadu Chennai - 600 004

¶3The Commissioner of Police Chennai City Chennai - 600 008

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.10.2024 CORAM: THE HONOURABLE MR. JUSTICE G.ARUL MURUGAN W.P.No.6157 of 2015 G.Malathi W/o.Pattabiraman ...Petitioner Vs 1. Government of Tamil Nadu Represented by Secretary to Government Home (Police) Department Secretariat Chennai - 600 009 2. The Director General of Police Tamil Nadu Chennai - 600 004 3. The Commissioner of Police Chennai City Chennai - 600 008 ...Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents herein to issue appropriate orders of revision of dates of upgradation of the petitioner as Head Constable with effect from 1.11.1991 instead of 28.02.2002 and Special Sub-Inspector of Police with effect from November 2001 instead of 01.06.2005 and to grant all consequential benefits and to forthwith depute the petitioner for the mandatory 9 weeks pre-promotional training for her regular promotion as Sub-Inspector of Police and to pass consequential orders promoting her as Sub-Inspector of Police and Inspector of Police, notionally from the appropriate dates. For Petitioner : Ms.T.Subhiksha in all WPs For Respondents : Mr.Stalin Abhimanyu in all WPs Additional Government Pleader C O M M O N O R D E R Since the issue raised in all the writ petitions are similar, by consent of learned counsel on both sides, all these writ petitions are taken up together and disposed of by this common order. 2. These writ petitions were filed for a direction to the respondents to issue appropriate orders of revision of dates of upgradation of the petitioners as Head Constables with effect from 01.11.1991 instead of 28.02.2002 and Special Sub-Inspector of Police with effect from November 2001 instead of 01.06.2005 and to grant all consequential benefits and to forthwith depute the petitioners for the mandatory 9 weeks Pre-Promotional training for their regular promotion as Sub Inspector of Police and to pass consequential orders promoting them as Sub-Inspector of Police and Inspector of Police, notionally from the appropriate dates. 3. Heard Ms.T.Subhiksha, learned counsel for the petitioner and Mr.R.U.Dinesh Rajkumar, learned Additional Government Pleader for the respondents in all the writ petitions. 4. All the petitioners were appointed as constables on 18.10.1986 barring the petitioner in W.P.No.6171 of 2015, who was appointed on 19.05.1987. Thereafter, the petitioners were upgraded to the post of Head Constable on 22.07.2002 and further they have been promoted to the post of Sub-Inspectors on 01.06.2005. While so, it is the claim of the petitioners that their upgradation has to be revised and they are entitled to be upgraded to the post of Head Constable as on 01.11.1991 itself and further to the post of Sub-Inspector with effect from November 2001. 5. It is the case of the petitioners that they were appointed under the ad hoc Rules and after prolonged correspondences, they were given promotion as Women Head Constables in the year 2002. When the time- bound promotions have been implemented in the year 1993 for the Constables and Head Constables, by upgrading the persons who have completed 10 years as Police Constable, Grade II to Police Constable Grade I and those who have completed 5 years of service as Police Constable Grade I were upgraded as Head Constable. Head Constables who have completed 10 years of service and overall service of 25 years were upgraded as Special Sub-Inspectors of Police. In this regard, Government has issued a Government Order in G.O.Ms.No.844, Home (Police V) Department, dated 03.06.1997 and commenced the upgradation scheme in a time-bound manner. 6. It is the grievance of the petitioners that insofar as the male Police Constables are concerned, the time-bound promotions are given to them and applying the above parameters, the petitioners who have been appointed as Constables in the year 1986, ought to have been upgraded as Head Constables on 01.11.1991 itself in stead of