(Prayer: Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for records and quashing the impugned Memorandum together with Annexure dated 29/9/2023 vide Rc. No. 5260130/ GB- III(2)/ 2023 issued by the 2nd respondent and consequently direct the respondents 1 and 2 to place the petitioner in SL No. 3 over and above the respondents 4 to 6 in the List of Deputy Commandants (TSP) in the said Annexure besides directing them to promote the petitioner as Commandant in such revised order of seniority for the year 2023- 24 with all attendant benefits thereon within the time frame.

Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records of the second respondent in connection with the impugned order passed by him in Rc. No. 5260130/ GB- III(2)/ 2023 dated 29.09.2023 and quash the same and further direct the respondents 1 to 3 to place the petitioner name over and above the respondents 4 to 6 in the list of promotion to the post of Commandant (TSP) for the panel year 2023-24 with all attendant benefits.)

Common Order

1. The writ petition in WP.No.4336 of 2024 has been filed challenging the Memorandum together with Annexure dated 29.09.2023 vide Rc. No. 5260130/ GB- III(2)/ 2023 issued by the 2nd respondent. The writ petition in WP.No.5356 of 2024 has been filed challenging the order of the second respondent passed in Rc. No. 5260130/ GB- III(2)/ 2023 dated 29.09.2023.

2. Both the writ petitions have been filed challenging the order passed by the second respondent dated 29.09.2023 thereby drawing the panel of Deputy Commandant for promotion to the post of Commandant (TSP) for the year 2023-2024 and placing respondents 4 to 6 above the petitioners. Therefore, this Court passes this common order.

3. Respondents 4 to 6 are juniors to the petitioners. However, they were shown in the drawal of panel as seniors to the petitioners for promotion to the post of Commandant (TSP) for the year 2023-2024. Though respondents 4 to 6 are juniors to the petitioners, they were granted accelerated seniority and they are promoted to the post of Commandant(TSP). Both the petitioners had become Inspector of Police in the year 1998 and respondents 4 to 6 had become Sub Inspector of Police in the year 2000. However, they were granted accelerated promotion from the post of Sub Inspector of Police to the Post of Inspector of Police on account of involving themselves in the encounter operation of killing then forest brigand Veerappan. Though they were granted accelerated promotion to the post of Inspector of Police, they should wait until their batch mates to become eligible for the next promoted post. By GO.Ms.No.1252 Home (Pol.8) Department dated 29.10.2004, respondents 4 to 6 were given accelerated promotion as Inspector of Police. But their batchmates were granted promotion only in the year 2008. They were granted one stage accelerated promotion. Therefore beyond the said promotion, they are not entitled for further promotion based on the accelerated promotion and they cannot claim accelerated seniority over and above their seniors. By GO.Ms.No.1396, Home (Pol.IA) Department dated 03.10.2007, it was ordered that the seniority of accelerated promotees shall continue to be governed by their panel position i.e. with reference to their inter-se seniority in the lower grade. At any stage, the accelerated promotion will not give the individual accelerated consequential seniority since the accelerated promotion is only for one stage.

4. However, aggrieved promotees filed writ petitions challenging the GO.Ms.No.1396, Home (Pol.IA) Department dated 03.10.2007 and the same were dismissed. The writ appeals were also dismissed and GO.Ms.No.1396, Home (Pol.IA) Department dated 03.10.2007 was upheld. At the time of admitting the writ appeals, the Division Bench granted interim order of stay of the order passed in the writ petitions. Taking advantage of the interim order, respondents 4 to 6 were promoted to the post of Assistant Commandant in the year 2012, whereas the batchmates of respondents 4 to 6 were promoted to the post of Assistant Commandant only in the year 2018. But after their promotion, the writ appeals were dismissed. Subsequent to the dismissal of the writ appeals, the Government passed order in GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013, thereby amending the Rule 11 of the Special Rules for Tamilnadu Police Service by giving accelerated seniority to such promotees from the date of the accelerated promotion in order to over take the order passed by the Hon'ble Division Bench and also GO.Ms.No.1396, Home (Pol.IA) Department dated 03.10.2007 which was already upheld by the Hon'ble Division Bench. Subsequently, GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013 was also challenged and the same was quashed in a batch of writ petitions in WP.No.24461 of 2013, etc. batch and the same was allowed and GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013 was quashed. Once again, the Government order in GO.Ms.No.1396, Home (P ol.IA) Department dated 03.10.2007 came back into operation.

5. However, once again respondents 4 to 6 were promoted to the post of Deputy Commandant in the year 2018 by following the accelerated seniority since challenge of GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013 in a batch of writ petitions in WP.No.24461 of 2013, etc. batch was pending and it was allowed only on 02.12.2020. But their batchmates were promoted to the post of Deputy Commandant only in the year 2023. Therefore, the petitioners submitted representation to re-arrange their seniority in the panel of Deputy Commandant over and above respondents 4 to 6 for promotion to the post of Commandant. However, without considering the representation submitted by the petitioners, the second respondent has drawn the panel of Deputy Commandant for promotion to the post of Commandant for the year 2023-24 by placing respondents 4 to 6 above the petitioners.

6. The learned Additional Advocate General appearing for respondents 1 to 3, with respect to the petitioner in WP.No.5356 of 2024, submitted that the petitioner was enlisted as direct Sub Inspector of Police on 02.06.1997. He was included in the 'C' list of Sub Inspectors of Police fit for promotion to the post of Inspectors of Police (General) for the year 2006-07 at Serial No.1(A). Subsequently, he was promoted to the post of Inspector of Police on 14.10.2006. Thereafter, he was included for promotion to the post of Assistant Commandant of the panel for the year 2017-18 and he was promoted to the post of Assistant Commandant on 13.06.2018. In the year 2022-2023, he was included in the panel for promotion to the post of Deputy Commandant and was promoted as Deputy Commandant on 15.05.2023. While drawal of panel for promotion to the post of Assistant Commandant for the year 2011-2012, the petitioner did not complete five years of service in the rank of Inspector on the crucial date i.e. 01.06.2011. As per Rule 4(C) of the Tamilnadu Police Service Rules, for the post of Assistant Commandant, in respect of educational qualification, the holder of certificate of SSLC old pattern or HSC (+2) eligible for college course of study, the probation has to be completed on or before the crucial date i.e. 01.06.2011 and completion of five years of service in the rank of Inspector as on the crucial date 01.06.2011. That apart, he was facing charge under Rule 3B of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 in which he was imposed punishment of reduction of time scale of pay by three stages for three years. It was confirmed by the appeal. But the Director General of Police suo motu enhanced the same to the punishment of dismissal from service. However, it was challenged and the original order of punishment was restored. Therefore, during that period, the petitioner was not fit to be included in the panel for promotion to the post of Assistant Commandant till 2017. He was included in the panel for the year 2017-2018 for promotion to the post of Assistant Commandant and promoted to the post of Assistant commandant.

7. The learned Additional Advocate General, with respect to the petitioner in WP.No.4336 of 2024, submitted that the petitioner was enlisted as Grade-II Police Constable on 02.06.1993 and was promoted to the post of Sub Inspector of Police on 01.10.1998. Thereafter, his name was included in the 'C' list of Sub Inspector of Police and he was promoted to the post of Inspector of Police on 09.08.2006. Later, he was included for promotion as Assistant Commandant in the panel for the year 2017-2018 and promoted to the post of Assistant Commandant on 08.06.2018. Thereafter, he was included in the panel for the year 2022- 2023 for promotion to the post of Deputy Commandant and promoted to the said post on 15.05.2023. While drawal of panel for promotion to the post of Assistant Commandant for the year 2011-2012, the petitioner did not complete five years in the rank of Inspector of Police on the crucial date i.e. 01.06.2011. Therefore, he was not included in the panel for promotion to the post of Inspector of Police for the year 2011-2012. Subsequently, till 2017, there was no panel for promotion to the post of Assistant Commandant. Only in the year 2017-2018, panel for promotion to the post of Assistant Commandant was drawn and the petitioner was promoted to the post of Assistant Commandant on 08.06.2018 and was subsequently promoted to the post of Deputy Commandant on 15.05.2023. Though certain persons were promoted by acceleration to the post of Inspector of Police, subsequently they fulfilled all requirements under the Tamilnadu Police Service Rules and as such, they were promoted to the post of Deputy Commandant and they were placed above the petitioner in the panel for promotion to the post of Commandant.

8. The learned Senior Counsel appearing for respondents 4 to 6 in both the writ petitions submitted that the petitioners failed to challenge the panel for promotion to the post of Assistant Commandant and Deputy Commandant of respondents 4 to 6 herein. Now they are challenging the panel for promotion to the post of Commandant as if they are seniors to respondents 4 to 6 herein. The fourth respondent served as Inspector in the supernumerary post from 2004 onwards and he was placed in the bottom of the seniority list of 1997 batch, whereas the seniors were placed over and above his name and he was promoted as Assistant Commandant on 31.12.2012 as per GO.Ms.No.44 Home (Pol.II) dated 21.02.2012. Later, he was included in the list of Assistant Commandant for promotion to the post of Deputy Commandant below his batch mates in the year 2018-2019 and promoted to the post of Deputy Commandant on 21.06.2018. Insofar as respondents 5 and 6 are concerned, they were promoted as Assistant Commandant by virtue of seniority acquired by them as Inspector of Police on regular promotion. Though they were promoted on supernumerary post, their names were included in the panel of the Assistant Commandant for the panel of the year 2011-2012. Thereafter they were promoted to the post of Assistant Commandant on 22.11.2012. Thereafter, they acquired seniority in the post of Assistant Commandant and were promoted to the post of Deputy Commandant along with the fourth respondent on 29.05.2018. Further, the petitioners challenged the seniority of respondents 4 to 6 after a period of 13 years. In this regard, the learned Senior Counsel relied upon the judgment of the Hon'be Supreme Court of India rendered in the case of B.S.Bajwa and another Vs. State of Punjab and others reported in (1998) 2 SCC 523, wherein it was held that in service matters, the question of seniority should not be re-opened in such situations after lapse of a reasonable period because that results would disturb the settled position, which is not justifiable.

9. Heard the learned counsel appearing on either side and perused all the materials placed before this court.

10. Admittedly both the petitioners are seniors to respondents 4 to 6 herein. Both the petitioners entered into the post of Sub Inspector of Police in the year 1997 and 1998 respectively, but respondents 4 to 6 were appointed as direct recruit Sub Inspector of Police only on 22.05.2000. While being so, respondents 4 to 6 were granted accelerated promotion from the post of Sub Inspector of Police to Inspector of Police by giving one stage accelerated promotion in the year 2004 on account of involving themselves in encounter operation of then forest brigand Veerappan as per GO.Ms.No.1252 Home (Pol.8) Department dated 29.10.2004. It is clear that accelerated promotion of one stage from present rank is accorded. Thus it is clear that the accelerated promotees are not entitled for further promotion based on the seniority vested in accelerated promotion post. Further in order to clarify the accelerated promotion, the Government passed another order in GO.Ms.No.1396, Home (Pol.IA) Department dated 03.10.2007. The relevant portion of the said Government order is as follows:

                     “Based on the careful and independent examination of the issue with relevant record and to ensure that the intention of the Government to recognise the members of service by accelerated promotion is not extended to accelerated seniority thus conferring benefits for the whole of the carrier and following the principles of natural justice. The Government hereby order the following.

                     (i) The existing para 5 (e) of the G.O.Ms. No.1252, Home (Pol. VIII) Department dated 29.10.2004 and G.O. Ms. No. 1346, Home (Pol. VIII) Department dated 06.12.2004 be deleted.

                     (ii) For the para 5 (e) occurring in the G.O.Ms. No. 1252, Home (Pol. VIII) Department dated 29.10.2004 and G.O. Ms. No. 1346, Home (Pol. VIII) Department dated 06.12.2004 the following shall be substituted.

                     "The seniority between the accelerated promottees and the general promottees in the promoted category shall continue to be governed by their panel position i.e., with reference to their inter-so-seniority in the lower grade. At any stage the accelerated promotion will not give the individual accelerated consequential seniority, since the accelerated promotion be only for one stage"

                     (iii)The concept indicated in para 3 (II) above is also applicable to the persons who have been awarded accelerated promotion in individual orders from time to time to the extend it applies to future promotion. The above principle will apply also in cases of accelerated promotion to be considered in future

11. Thus it is clear that at any stage, the accelerated promotion will not give any individual accelerated consequential seniority since the accelerated promotion was given only for one stage. Accordingly, respondents 4 to 6 were promoted from the post of Sub Inspector of Police to the post of Inspector of Police by accelerated promotion. Therefore, the promotees filed a batch of writ petitions before this Court and all the writ petitions were dismissed by an order dated 14.10.2009. Aggrieved by the same, a batch of writ appeals were filed in WA.Nos.849 to 854 of 2010 etc. batch. While admitting the writ appeals, the Hon'ble Division Bench of this Court had granted interim stay against the writ orders. In pursuant to the interim order, respondents 4 to 6 were promoted to the post of Assistant Commandant in the year 2012 itself as per the accelerated promotion seniority. But their batchmates were promoted to the post of Assistant Commandant only in the year 2018 i.e. six years later than their promotion. Ultimately the writ appeals were dismissed by order dated 05.04.2013 and GO.Ms.No.1396, Home (Pol.IA) Department dated 03.10.2007 was upheld. However, in order to sustain the promotion of respondents 4 to 6 and in order to overcome the order passed by the Hon'ble Division Bench of this Court, the Government passed another order in GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013 thereby amending the rule 11 of the Special Rules for Tamilnadu Police Service by giving accelerated promotion. The said rule was contradictory to the judgment of the Hon'ble Supreme Court of India. Therefore, the said Government order also was challenged in a batch of writ petitions in WP.No.24461 of 2013, etc. batch as unconstitutional and illegal. This court by order dated 02.12.2020 allowed the writ petitions and quashed the GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013. While pending the batch of writ petitions, once again respondents 4 to 6 had been promoted to the post of Deputy Commandant in the year 2018 itself as per their accelerated seniority on the basis of GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013. But their batchmates were granted promotion to the post of Deputy Commandant only in the year 2023.

12. Thus it is clear that in order to substantiate the promotion of respondents 4 to 6, the Government passed orders and even after quashment of the same, respondents 4 to 6 were not reverted to their original position. In order to circumvent one mistake, the first respondent passed wrong orders. Even after declaring those orders as illegal, respondents 1 to 3 failed to act against the promotion of respondents 4 to 6. There was no panel at all for promoting respondents 4 to 6 from time to time to the higher post. Therefore the contention of the learned Senior Counsel appearing for respondents 4 to 6 that the petitioners failed to challenge the panel for promotion to respondents 4 to 6 cannot be countenanced. By virtue of interim order passed in the said batch of writ appeals, respondents 4 to 6 were promoted to the post of Assistant Commandant in the year 2012 and as per the order passed in GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013, they were promoted to the post of Deputy Commandant. The Hon'ble Division Bench while dismissing the writ appeals, framed the following points for consideration:

                     1. Whether non-challenge of G.O.Ms.No.1252, Home dated 29.10.2004 and other Government Orders will disentitle the regular promotees to question the consequential seniority claimed by the Appellants?

                     2. Whether the Respondents are right in contending that the accelerated promotion given to the Appellants/Police personnel in Special Task Force Team was without reference to any statutory rules and that executive orders cannot override the statutory rules?

                     3. Whether the Appellants and other police personnel, who were awarded one stage accelerated promotion in the newly created supernumerary posts, can claim consequential seniority in the higher category?

                     4. Whether contesting Respondents are right in contending that the promotional post being a selection post, question of fixing seniority for accelerated promotions in the promotional position has to be strictly in accordance with Tamil Nadu State and Subordinate Service Rules?

                     5. Whether the award of accelerated promotion given to the accelerated promotees was promotion given to them based on merit and ability within the ambit of Rule 36(b)(ii)(2)?

                     6. Whether the Government was right in considering the representations given by the Police Officers, who are seniors to the persons who have been accorded accelerated promotion and passing impugned G.O.Ms.No.1396 Home dated 3.10.2007?

                     7. Whether G.O.Ms.No.1396 Home dated 03.10.2007 deleting Para No.5(e) clarifies ambiguity over panel position of the accelerated promotees vis-a-vis their seniors in the lower category as per Tamil Nadu State and Subordinate Service Rules?

                     8. Whether the Government is justified in taking a different stand in the writ appeals and issuing G.O.Ms.No.332 Home dated 03.05.2012?

13. In the aforesaid writ appeals, the Hon'ble Division Bench concluded as follows:

                     138. Without going into all these aspects, we could have set aside G.O.Ms.No. 332 dated 3.5.2012, by simply holding so in view of our findings and decision rendered in the above writ appeals. Yet, we would like to express our dismay and displeasure over the action of the Government in hurriedly passing G.O.Ms.No.332 without even waiting for the decision in the writ appeals. Therefore, we are of the view that in all fairness G.O.Ms.No.332 dated 3.5.2012 ought not to have been passed by the Government . Consequently, we have no hesitation in holding that G.O.Ms.No.332 dated 3.5.2012 is invalid and passed without any competency. Accordingly, the same is liable to be quashed.

                     139. Conclusion:-

                     W.A.Nos.849 to 854 and 2066 of 2010:

                     Accelerated promotion was without reference to the statutory rules or G.O.Ms.No.468, Home, dated 19.3.1996. The appellants and other police personnel were not promoted to the substantive posts but were accommodated by creation of supernumerary posts. Since there was ambiguity over panel position of the accelerated promotees vis-a-vis regular promotees, considering the representation given by the police officers, Government rightly issued G.O.Ms.No.1396 Home dated 3.10.2007 deleting paragraph No.5(e) in G.O.Ms.No.1252, Home, dated 29.10.2004 and G.O.Ms.No.1346, Home, dated 6.12.2004. Government was well within its powers in deleting Paragraph No.5(e) in G.O.Ms.No.1252, Home, dated 29.10.2004 and G.O.Ms.No.1346, Home, dated 6.12.2004 and clarifying the position by substituting a new one in G.O.Ms.No.1396, Home, dated 3.10.2007 restoring the original seniority. The learned single Judge rightly dismissed the Writ Petitions and we do not find any infirmity in the order of the learned single Judge warranting interference and all the Writ Appeals are dismissed. The order of status quo granted on 2.8.2012 is vacated.

                     Consequently, the Writ Petitions in W.P.Nos.25736 to 25741 of 2010 are dismissed.

                     140. W.P.Nos.17731, 20728 of 2012 and W.P.(MD) No.8911 of 2012: The impugned G.O.Ms.No.332 Home (Pol.1A) Department dated 03.5.2012 had directly dealt with the subject matter pending before the Division Bench sitting over the judgment of the learned single Judge. The grant of stay in Writ Appeals will not confer any right on the Government to pass the impugned G.O. Ms.No.332 Home (Pol.1A) Department dated 03.5.2012 independently and the impugned G.O.Ms.No.332 Home (Pol.1A) Department dated 03.5.2012 is quashed and all these Writ Petitions are allowed. No costs.

14. Therefore all the issues were decided against the accelerated promotees. Subsequently, in order to circumvent the order passed by the Hon'ble Division Bench of this Court and also in order to substantiate the promotions granted by accelerated seniority, the Government passed another Order in GO.Ms.No.550 Home (Police-2) Department dated 24.07.2013 thereby amending the Special Rules as follows:

                     In the said Special Rules,--

                     1) the existing provision of rule 11 shall be numbered as sub-rule (a);

                     2) in rule 11, after sub-rule (a), as so numbered, the following sub-rule shall be added, namely:--

                     "(b) The seniority of the officer of any class or category of the Service who has been granted accelerated promotion shall be determined with reference to the date of accelerated promotion and the name of such officer shall be placed at the bottom of the seniority list of the respective higher category existing on the date of joining duty in the higher post".

15. The said order was also challenged before this Court in a batch of writ petitions in WP.Nos.24461 of 2013, etc. batch and this Court by order dated 02.12.2020 quashed the said Government order. The relevant portion of the said order is as follows:

                     79. The promotion against supernumerary posts only makes the case stronger for the regular promotees to assail the grant of benefit of accelerated seniority. Nonetheless accelerated promotion against regular vacancy under Rule 36(b)(ii)(2), assuming that the promotion was made under the said Rule did not mean that accelerated seniority to be conferred as a consequence of such promotion without reference to any Rule. Therefore, this Court is of the considered view that ultimately whether the promotion was against supernumerary post or against a regular post is immaterial in testing the validity of the grant of accelerated seniority. Even otherwise, the learned Division Bench in paragraph 88 has observed that the claim for accelerated seniority may be sought if a person was accommodated in a substantive vacancy, provided such promotion so conferred was made within the Rules, which means if only the promotion was made in terms of the Rules like 35(a), 35(aa) of the Tamil Nadu State and Subordinate Service Rules or 25 of the Tamil Nadu Police Subordinate Service.

                     80. On the aspect of delay, this Court finds that in the normal circumstances, the objections may have been valid but on consideration of the continuous pending of -lis- before this Court and the legal circumstances and the core issue has been hanging fire particularly at the instance of the Government, the said objections are liable to be rejected. In fact, before the learned Division Bench tacitly the issue of delay was raised as there was no challenge to G.O.Ms.No.1252, Home (Police ? VIII) Department, dated 29.10.2004 for considerable time, but the objection was overruled on the larger consideration of the lis. Therefore, while disposing of all these writ petitions, no exception could be carved out in respect of these three writ petitions. The effect of the learned Division Bench decision dated 05.04.2013 and the decision of this Court would cover all promotions and seniority that are subject matter of the present batch of writ petitions.

                     81. The impugned amendment completely ignoring the law declared by the Hon'ble Supreme Court of India and reproduced and reiterated in the Division Bench order, is an affront on the well settled sacrosanct legal precedents. As stated earlier the validity of the impugned amendment ought to be tested with reference to the policy disclosed or declared by the Government as preamble or preface to the amendment. This is the rudimentary Constitutional principle and understanding. Either the Government was blissfully ignorant as how to exercise its power referable to the Constitution in overruling the judgment of the Constitution Court, or it was a cocky demonstration of officious imprudence, whichever was the basis, in the complete absence of any such policy being delineated or demonstrated, removing the substratum of the challenge repulsed by the Division Bench, the impugned amendment is liable to be interfered.

                     82. In the said circumstances, G.O.Ms.No.550, Home (Police ? 2) Department, dated 24.07.2013 amending Rule 11 of the Special Rules for Tamil Nadu Police Service is hereby quashed, as unconstitutional and illegal.

                     In the result;

                     (i)W.P.Nos.24461, 26276 of 2013 challenging G.O.Ms.No.550, Home (Police ? 2) Department, dated 24.07.2013 are allowed.

                     (ii)W.P.Nos.8596, 1173, 13345, 14302 and 12719 of 2020 stand dismissed.

                     (iii)W.P.No.20145 of 2018, W.P.Nos.8163 and 8654 of 2020 stand disposed of in terms of the observations as above particularly in paragraph No.80 of this judgment.

16. Even then, the second respondent has now drawn the panel of Deputy Commandants for promotion to the post of Commandant for the year 2023-2024 by placing the respondents 4 to 6 above the petitioners. Further, though one of the petitioners suffered with one punishment, subsequently both the petitioners were promoted from time to time as per their batch seniority. Accordingly, as per their batch seniority, the petitioners are seniors to respondents 4 to 6 herein.

17. In view of the above, the drawal of panel of Deputy Commandant for promotion to the post of Commandant (TSP) for the year 2023-2024 is quashed insofar as the seniority of respondents 4 to 6 herein. Accordingly, the second respondent is directed to place the petitioners at serial Nos.2 & 3 instead of 5 & 6 and to place respondents 4 to 6 at serial Nos.4 to 6 instead of 2 to 4 and to effect promotion to the post of Commandant in the vacancies.

18. In the result, both the writ petitions stand allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.