N GANAPATHY SUB INSPECTOR OF POLICE SPECIAL BRANCH CID HEADQUARTERS CHENNAI Vs. DIRECTOR GENERAL OF POLICE CHENNAI

JUDGEMENT

(1.) SINCE the case of the petitioners in both the writ petitions is identical, these writ petitions are decided by this common order.

(2.) THE case of the petitioners, in brief, is as under: Both the petitioners joined the Police Department as constable in the year 1974 and were promoted in the year 1983 as Head constable. While the petitioner in W.P. 4902 of 2005 got temporary promotion as Sub-Inspector on 13. 02. 1986, the other petitioner got temporary promotion as Sub-Inspector on 23. 08. 1988. Seeking regularisation of their services as Sub-Inspector, they had moved the Tamil Nadu Administrative Tribunal which by its order dated 27. 03. 1998, had directed the respondent therein to regularise the services of the petitioners and to fix seniority as per the rules. THE Commissioner of Police, Chennai, by his order dated 11. 12. 1998, implemented the order of the Tribunal by placing the petitioners at the bottom of the "c" List of the year 1994 and further directed them to undergo pre-promotional training. That apart, the petitioners were also subject to three months practical training. On 01. 02. 2005, the Director General of Police had come out with a'c" List of sub-Inspectors of Police fit for promotion as Inspectors drawn for the year 2004-2005 in and by which even the names of the Sub-Inspectors who were direct recruits in the year 1996 were included whereas the names of the petitioners were not included thereby denying them promotion to the post of Inspector even for the year 2004-2005. Hence, the present writ petitions.

(3.) MR. A. Edwin Prabakar , learned Additional Government Pleader has contended that when promotion test was conducted in 1985, the petitioners were not possessing the sine qua non of 4 years experience as Head Constable since they were promoted only during 1983 and their services as Sub-Inspector of Police have rightly been taken into account only from 14. 02. 1999 after their completing the requisite institutional and practical training and this is in accordance with Rule 35 ( aa ) of Special Rules for Tamil Nadu Police Subordinate Service. In support of his contention that the period of temporary service prior to regularisation need not be counted for the purpose of promotion, the learned Additional Government Pleader has relied on a judgment of the Supreme Court reported in (2006) 6 SCC 558 in the case of K. Madalaimuthu and another vs. State of T.N. and others ( para 24) "on a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one canvassed on behalf of the appellants. The decisions cited by MR. Rao have been rendered in the context of Rule 10 (1 ) ( i ) (1)and other relevant rules which are also applicable to the facts of the instant case. Apart from the above, the law is well settled that initial appointment to a post without recourse to the rules of recruitment is not an appointment to a service as contemplated under Rule 2 (1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39 (c) of the General Rules indicates that a person temporarily promoted in terms of Rule 39 (a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the Rules. It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. It, therefore, follows that it is only from the date on which his services are regularised that such appointee can count his seniority in the cadre. &quot