A.S.Venkatachalamoorthy - (1.) THE first respondent approached the Tamil Nadu Administrative Tribunal, claiming that he joined the police service directly as Sub Inspector of Police on 1.4.1970 and he was promoted as Inspector of Police on 03.06.1983. He came within the zone of consideration for inclusion in the panel of Inspectors of Police for appointment by transfer as Deputy Superintendent of Police (Category-I) for the year 1995-96. In fact, his name was included in the Regular Panel at Serial No.123. To his shock and surprise, in the postings made on 2.4.1997, his name did not find a place and his junior by name M.R.Nandakumar viz., the 2nd respondent herein was given posting. This prompted him to move the Tamil Nadu Administrative Tribunal to direct the petitioners to promote him as Deputy Superintendent of police with effect from 2.4.1997, giving appropriate placement in the seniority list.
(2.) THE petitioners herein resisted the said Application, contending that the Departmental Promotion Committee met on 17.07.1996 and 08.09.1996 and considered the cases of the first respondent and other Inspectors of Police for inclusion in the panel of Deputy Superintendent of Police (Category-I) for the year 1995-96. But, his name was not included in the panel as he was not found fit for appointment by the said Committee as he was having punishments during the check period of five years. THE 2nd respondent, who was his immediate Junior in the seniority list, was found fit by the Committee and his name was included in the panel and he was promoted as Deputy Superintendent of Police by posting orders issued in Police Note No.17 dated 2.4.1997. In fact, even prior to the above said posting orders, he made a representation on 15.5.1996, praying for inclusion of his name in the 1996-97 panel. By communication dated 25.10.1996, the first respondent was informed that the panel for the year 1996-97 had not been prepared and the suitability of his name for inclusion in the panel would be assessed at the time of next Departmental Promotion Committee Meeting. In fact, the Departmental Promotion Committee met on 23.10.1997 for considering inclusion of eligible Inspectors of Police in the panel of Deputy Superintendent of Police for the year 1996-97, but however, the name of the first respondent was deferred in view of the pendency of charges and in terms of the guidelines contained in G.O.Ms. No.368, P & AR Department, dated 18.10.1993. In fact, this was also communicated to him. The Tribunal, after considering the respective case of the parties, allowed the application and directed the petitioners to pass orders within a period of four weeks, promoting the first respondent as Deputy Superintendent of Police, on the basis of inclusion of his name in the panel issued for the year 1995-96 in G.O.Ms. No.1363, Home, dated 18.9.1996 with effect from 2.4.1997 with all service and monetary benefits. That the first respondent entered service in the year 1970 as Sub Inspector of Police and thereafter promoted as Inspector of Police in the year 1983 are not in dispute. Equally there is no dispute that he came within the zone of consideration for inclusion in the panel of Inspectors of Police fit for appointment by transfer as Deputy Superintendent of Police (Category-I) for the year 1995-96. The reason put forward by the petitioners for not including his name in the Panel is that the first respondent was found unfit by the Departmental Promotion Committee for inclusion as he was having various punishments during the check period of five years. According to the petitioners, on the crucial date viz., on 01.06.1995, there were five punishments to the credit of the first respondent viz., (a) Censure - 1990 (delinquency committed during 1986) (b) Censure - 1991 (delinquency committed during 1991) (c) Censure - 1991 (delinquency committed during 1990) (d) Censure - 1991 (delinquency committed during 1985) (e) Censure - 7.11.93 (delinquency committed during 1992) Learned Additional Government Pleader, appearing for the petitioners, quoting G.O. Ms. No.368 dated 18.10.1993, would submit that the Committee compared the cases of the individuals over a specified period of five years and decided the question of inclusion or exclusion, as the post of Deputy Superintendent of Police is one of Selection category and the names to be included in the panel have to be based on merit and ability, seniority being considered only when merit and ability are clearly equal. Learned Special Government pleader would also refer to the guidelines issued by the Personnel and Administrative Reforms (S) Department, in particular Guideline No.4(II) 2, which reads as under:- " Any punishment, other than 'Censure", imposed on an Officer within a period of five years prior to the crucial date and a punishment of 'Censure" within a period of one year prior to the crucial date should be held against the Officer. In such a case the Officer's name should be passed over. Provided that if the Officer was imposed with any of the punishments within the check period as mentioned above for irregularities/delinquencies which occurred five years prior to the date of punishment, such punishment need not be held against him. Provided that an Officer passed over once, need not be passed over for the second time on account of the same punishment at the time of subsequent consideration for the next panel." , and would contend that the request of the first respondent to include his name in the panel for the year the year 1995-96 ought not to have been granted. This norm was again amended by a Communication issued by the same Department on 1.10.1999 and the relevant portion of the same reads as under:- As per the first proviso to paragraph 4 II (2) of the letter second cited, if the Officer was imposed with any of the punishments within the check period for irregularities/delinquencies which occurred five years prior to the date of punishment. Such punishment need not be held against him. On the suggestions of the Tamilnadu Public Service Commission the Government have examined in detail the above norm and have decided that the date of occurrence of the irregularities/delinquencies should be punishment. Accordingly, the following amendment is issued to the letter second cited:- AMENDMENT The existing first proviso to paragraph 4 II(2) shall be substituted as follows:- ' Provided that if officer was imposed with any of the punishment within the check period as mentioned above, for irregularities/delinquencies which occurred five years prior to the crucial date, such punishment need not be held against him.' "
(3.) ON the other hand, the learned counsel appearing for the first respondent would contend that the first censure was during the year 1990 and the remaining three were in the year 1991. The 5th one was in the year 1993, but however, instead of communicating the same immediately, the petitioners, with an ulterior motive, communicated only in the year 1995. The belated communication was only with a view to persuade the Committee not to consider the name of the first respondent for a longer period. The name of the first respondent was in fact included in the panel for the year 1995-96 and the same was also communicated to him, which should mean that the Departmental Promotion Committee considered all the materials available on record and decided to include his name in the panel. That being the real factual position, the Writ Petition may be dismissed. With reference to the panel 1995-1996, the crucial date was 01.06.1995. As pointed out by the learned Special Government Pleader, any irregularity committed within the check period can be taken into consideration. Hence, the Censure-2, 3 and 4, all of the year 1991, can be considered by the Departmental Promotion Committee. That apart, the censure in the year 1993, (the irregularity took place in the year 1992) would also be a relevant factor for the Committee to take note of. If that is so, irregularities were committed within the check period and the committee cannot be said to have committed an error in not including him in the 1995-96 panel. All that is claimed by the first respondent is that he received a communication and page 16 of the O.A. is categorical that Inspectors of Police fit for appointment as Deputy Superintendent of Police for the year 1995-96 approved by the Government in the G.O. was communicated to all Inspectors for information. A copy of G.O. Ms. No.1363 dated 18.9.1996 is very much available now before this Court. The said G.O. contains a panel of 53 names and in which the name of the first respondent is not noted. The petitioners have clearly explained that the Department communicated to all the persons viz., whose names have been included and not included. A categorical statement has been made now before this Court by the petitioners in the following terms.:- " It is submitted that the panel of Inspectors of Police fit for promotion as Deputy Superintendent of Police for the year 1995-96 was approved in G.O. Ms. No.1363, Home, dated 18.9.1996. Through Police memorandum dated 25.10.96 the fact of approval of the panel was communicated to all the Inspectors of Police concerned (both included and not included). The first respondent acknowledged this. It appears that he had given a serial numbers to all the addressees and fixed his placement at serial number 123 and assumed it as approved panel with proper seniority. He had done it on his own and the communication dated 25.10.1996 with enclosures did not specify ranking and seniority for him as assumed by the first respondent. " According to the first respondent, his serial number is 123 in the selection panel while G.O.Ms. NO.1363 dated 18.10.1996 gives a panel of only 53 names. As could be seen from the records, the first respondent has been agitating from the year 1997. Even according to the petitioners, his name for inclusion in the panel 1996-97 was deferred in view of the pendency of charges against him. Admittedly, the punishment of postponement of increment without cumulative effect, which was originally imposed on the first respondent on 29.3.1996, was cancelled by the Director General of Police on 30.07.1997. The crucial date for 1996-97 panel is 01.06.1997. On that date, there was nothing against the first respondent as the censure imposed in 1993 had already been considered by the Committee once ie., for the panel 1995-96. In these circumstances, in the interests of justice and to give a quietus to the matter, we direct the petitioners to include his name in the panel dated 07.11.1997 (with reference to 1996-97 panel). The postings shall be given within six weeks from today, giving appropriate placement therein. ;