V. Ramaswami, J.
1. This is a petition for the issue of a writ of mandamus directing the first respondent to promote the petitioner in the eleventh rank in the list prepared by the third respondent.
2. The petitioner was recruited as Sub-Inspector of Police in November, 1950. He was promoted as Inspector of Police on 30th May, 1968. The next higher post is the post of Deputy Superintendent of Police. Inspectors of Police are eligible for recruitment by transfer as Deputy Superintendents of Police. The petitioner became eligible for considering his name for appointment as the Deputy Superintendent of Police with reference to his qualifications even as early as 1972. Though there were certain recruitments between 1972 and 1976, the petitioner was not aggrieved, as those who were recruited during that period were all seniors to him. The method of recruitment by transfer is provided in Police 'Stand-in' Order 14(A). As per this Order, the Superintendents under whom the Inspector of Police are working will have to send a list of names of Inspectors eligible for recruitment by transfer with their recommendations to a committee called the Range Promotion Board, consisting of the Deputy Inspector-General of Police and two Superintendents of Police of the Range. The Range Promotion Board will consider the names of the Inspectors with reference to their personal files, confidential sheets, and the list of rewards and defaults and send their recommendation to the State Promotion Board, which consists of all the Deputy Inspectors General of Police and the Commissioner of Police, Madras, as members and the Assistant Inspector-General of Police as the Secretary. The State Promotion Board, after examining the records of all eligible Inspectors, and after interviewing such number among them, as may be indicated by the Inspector-General of Police, will submit its recommendation to the Inspector-General of Police indicating the order of preference in which the names recommended have been arranged. After examining the recommendations of the State Promotion Board, the Inspector-General of Police will send his recommendation to the Tamil Nadu Public Service Commission. When the recommendations of the Tamil Nadu Public Service Commission are received by the Government, the ultimate order of appointment is made by the Government.
3. It is seen from the counter-affidavit filed in this case that at each of these stages, the candidates are selected on the basis of merit and ability, with reference to their personal files, confidential sheets, and list of rewards and defaults. But the mere number of rewards and punishments in the personal files and defaulter sheets is not the criteria for making selection. The overall performance of the individuals during their service in the lower post determines their suitability Therefore, the merit and ability of the petitioner with reference to the number of rewards and punishments noted in the personal files and defaulter sheets and the overall performance during the period of his service as Inspector of Police, alone could have been taken into account for determining his suitability for recruitment by transfer.
4. The petitioner's name was recommended by the Superintendent of Police, Vellore as also by the Range Promotion Board, and his name was not recommended by the State Promotion Board with the remark 'Mixed record. To Wait'. The petitioner made his representations to the Government against the non-inclusion of his name in the list for promotion as Deputy Superintendents, but that representation was rejected. It is at this stage that the petitioner has filed this writ petition claiming that his name should have been included by the State Board in the list of persons found fit for promotion on the ground that the non-inclusion was discriminatory, illegal and contrary to law.
5. The main point urged by the learned Counsel for the petitioner was that subsequent to 30th May, 1968 when he was promoted as Inspector of Police, he had a sufficiently meritorious service, at any rate better than many of the persons who have been now included in the list, and that there was no warrant for the remark 'Mixed record'.
6. Before I consider the legal right of the petitioner to raise this question, I may now notice the remarks in the confidential report. There was one remark dated 5th December, 1970. It is stated in this report that his probation has been extended by six months with a warning to show improvement in his work, failing which probation will be ceased. Subsequently, he was declared to have completed his period of probation, and, therefore, it may be taken that his work had improved and became satisfactory. There is no other remark in the personal file which can be called adverse. In fact, every one of the officers under whom he had worked during this period had stated that his conduct and character were satisfactory. He had to his credit 23 rewards between 1968 and 1977. During the relevant period, there were only two censures. In the counter-affidavit, it was stated that he had two censures and one reprimand. The only reprimand referred to in the counter-affidavit was long after the State Promotion Board had considered the case of the petitioner, and, therefore, could not have been taken into account by the State Promotion Board. Of the two censures, the first one. was for gross neglect of duty for sending a perfunctory report. On a further representation made by the petitioner, this censure was modified as reprimand. The other censure was for gross neglect of duty in delaying sending of diary in a case investigated by him between 1969 and 1970. The file entitled 'Periodic Reports in Form No. 9' shows that the petitioner was warned against the habit of approaching ministers to get things done in his favour and also some other shortcomings. This remark was made by the Commissioner of Police with reference to his work for the half year ending 15th September, 1969. But the same Commissioner of Police had made his remarks for the previous half year to the effect that the petitioner has been taking good interest in his work and has been showing improved results. He had also made a remark in the personal file that his work and conduct are satisfactory. 'This adverse remark was also communicated to the petitioner, who made his representations for expunging the remarks. The remark was altered to the effect that he brought extraneous influence to bear on his superior officers for 'his retention in the City Police'. The subsequent reports in Form No. 9 show that he has improved considerably in his routine work and showed also initiative. These are all the materials that are available so far as the petitioner is concerned. The State Promotion Board has characterised this material as 'mixed record'. Though this Court cannot normally sit in judgment over the assessment of merits of individual officers by the State Promotion Board, certainly it is open to this Court to point out that on facts there is no evidence to show that the remarks 'mixed record' is supported by any evidence.
7. I have set out the record in detail in order to show that none of the facts mentioned in any of the records can be considered as adverse so as to make it a 'mixed record' along with good reports. The reprimand and censure which I have referred to related to neglect of duty, if at all and that was in the year 1970, and the later report showed that he had shown remarkable improvement in his work. One will have to keep in mind that the petitioner was promoted as Inspector only in 1968, and if there was some neglect in the beginning, it cannot be considered as so grave a circumstance which will have to be put against a promotion after a long number of years. Even the neglect of duty mentioned there seems to be of a very trivial nature and they are in the nature of default not affecting his character, reputation or conduct.
8. The petitioner had worked as Inspector under at least three officers. Two of the officers have given a certificate to the effect that his work and conduct are fair. Even the third officer had nothing to say about his character or conduct, but only had made a remark to the effect that he tried to bring influence to retain him in the City. In considering the promotion of candidates, I am of the view that such trivial matters could not have entered into the mind of the selecting body especially where it is likely to affect his future career and therefore there shall have to be some other adverse remark in' order to warrant a remark 'mixed record'. There is nothing on record to show that the petitioner had a mixed record. Having seen the entire record myself, though I cannot consider myself as an appellate Court or authority, I am unable to get over the feeling that the petitioner had been denied justice. Accordingly the petitioner will be entitled to a mandamus directing the respondents to include his name in the list of persons fit for promotion as Deputy Superintendent of Police.
9. The petitioner had given a list of persons, who are juniors to him. in respect of whom, according to the petitioner, some proceedings were pending which will disentitle them to be included in the panel. It is not necessary for me to go into that question. Even if a person has been wrongly included, the petitioner cannot ask on that ground another wrong to be done in his favour also. Unless the petitioner is entitled on his own merits to be included in the list, there will not be any point in objecting to the inclusion of the names of other persons. Therefore, I am not going into the question as to whether the names of other persons were properly included or not.
10. The learned Government Pleader contended that ultimately it is the Tamil Nadu Public Service Commission that will have to scrutinise the recommendations of the Inspector-General of Police, and unless the Tamil Nadu Public Service Commission did not include the name of the petitioner, he could have no grievance at all at this stage. In this connection, he referred to Rule 3 of the Tamil Nadu Public Service Commission Rules of Procedure. That rule requires the Service Commissioner to consider the claims of as many candidates eligible as are eligible in its opinion, for recruitment by transfer as it considers necessary together with any recommendation made by the Head of the Department, and it further stated that when considering the suitability of candidates under this rule, if the commission feels any doubt 'about a candidate's fitness' for the post or when there is a difference of opinion between it and the Head of the Department, it shall summon the candidate for an interview. The learned Government pleader contended that the words 'if the Commission feels any doubt about the candidate's fitness for the post' will include also a case where a candidate's name was not included in the list of persons recommended by the State Promotion Board on the ground that he was not fit and the Commission can consider even the case of persons whose names have not been recommended by the State Promotion Board. I cannot agree with this contention of the learned Government Pleader. Under Article 320 of the Constitution of India, the State Public Service Commission shall be consulted on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers. The consultation contemplated in the [Article is with reference to the person who is proposed to be appointed or promoted by the State Government. The proposal as such, therefore, will have to go in some form or other to the Service Commission with reference to a particular candidate or candidates so as to enable them to express their opinion as to the fitness of the candidates for the post. Accordingly. the words 'any doubt about a candidate's fitness for the post', referred to in Rule 3 of the Tamil Nadu Public Service Commission Rules of Procedure can only mean about the fitness of the candidate who is proposed to be promoted, and not who had already been rejected as not fit. Therefore, the Government cannot now contend that it is still open to the Service Commission to include the name of the petitioner, even though the State Promotion Board has not recommended and the Inspector-General of Police has not sent his recommendations to the Service Commission.
11. In the result, though the prayer in the writ petition for 'promoting' the petitioner as the Deputy Superintendent of Police cannot be given in that form, a mandamus will issue directing the respondents to include the name of the petitioner in the list of persons fit for promotion as Deputy Superintendent of Police for the year 1977-78. The writ petition is allowed accordingly. There will be no order as to costs.