Voluntarily choosing the path for promotion determines entitlement to claim seniority and promotion on par with juniors.

JUDGMENT

(Prayer: Appeal filed under Clause 15 of Letters Patent, praying this Court to set aside the order dated 11.04.2012 made in W.P.(MD)No.2329 of 2011 on the file of this Court.)

 R. Suresh Kumar, J.

1. This Intra Court appeal has been directed against the order passed by the Writ Court dated 11.04.2012 made in W.P.(MD)No.2329 of 2011.

2. It is the case of the appellant, who was writ petitioner before the Writ Court, that, he joined as a Police Constable Grade – II on 25.05.1988 in the Tamil Nadu Police Service and he was immediately attached to Motor Transport Branch on Other Duty basis.

3. Even though he has attached to M.T. wing, his lien continued in the regular wing, which is otherwise called as Armed Reserve wing.

4. After some years, normally test would be conducted for promotional avenue and the said test even though was conducted for the Police people who are being in the regular line, such test had not been conducted to the petitioner and it had not been informed to the petitioner and therefore, he was not able to participate in the test. Had he been continued in the regular wing litself without attached with the M.T. wing on Other Duty basis, he would have been in a position to write the test and at the earliest point of time he would have earned the promotion to the next cadre.

5. However, only after 10 years i.e., in the year 1998 such test was conducted in the M.T. wing itself, for which, the petitioner was permitted to participate and he has chosen to participate in that test and got through and subsequently only he was able to won the promotion.

6. The resultant situation, according to the petitioner, was that, even though the private respondents herein and some other people, who are juniors to the petitioners based on the date of enlistment originally in the year 1998, subsequently they got a promotion and marched over the petitioner, however, the petitioner, even though was senior in the enlistment and seniority list, could not achieve such promotion, marching over the juniors and therefore, the said denial of permission to participate in the test at the earliest point of time along with the juniors and others, who had been simultaneously enlisted along with the petitioner, was bad in law and therefore, because of that action on the part of the official respondents or inaction on their part since the right choice of the promotion to the petitioner has been denied at the appropriate time and by virtue of that the juniors got the promotion. In order to challenge the same and seeking a chance for such a promotion, of course, notionally on par with the juniors, the petitioner had approached the Writ Court by filing the Writ Petition.

7. A learned Judge of the Writ Court having considered the said plea made on behalf of the petitioner / appellant has rejected the same and dismissed the Writ Petition by order dated 11.04.2012, which is impugned herein.

8. Assailing the said order, Mr.T.Cibi Chakraborthy, learned counsel appearing for the petitioner would submit that the denial of permission to participate in the test in the regular wing along with others, including the juniors of the petitioner is an inaction or arbitrary action on the part of the official respondents, for which, the petitioner cannot be blamed.

9. Subsequently, after 10 years, only in the M.T. wing such a test was conducted, where the petitioner was permitted to participate and even though he become successful, he could not reach the position in the promoted category along with the juniors of the petitioner and therefore, on par with the said juniors the position of the petitioner shall be upgraded in the promoted position and the same was sought for, which was since denied by the Writ Court, the order impugned is infirm and therefore, the learned counsel seeks indulgence of this Court.

10. Heard Mr.A.K.Manikkam, learned Special Government Pleader, appearing for the official respondents, who would submit by relying upon paragraph Nos.1 and 7 of the coun