Madras High Court
S.Meena vs The Director General Of Police on 24 February, 2021
W.P.No.21154 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 24.02.2021
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.P.No.21154 of 2011
S.Meena ... Petitioner
Vs.
1.The Director General of Police
Dr Radhakrishnan Salai,
Mylapore, Chennai - 4.
2.The Superintendent of Police,
Thanjavur, Thanjavur District. ... Respondents
Prayer: Petition filed under Article 226 of Constitution of India praying for
issuance of a Writ of Mandamus directing the first respondent to consider
the claim of the petitioner for promotion as Inspector of Police by including
her name in the C list of Sub-Inspector of Police fit for promotion as
Inspector of Police for the panel year 2010-11 without reference to the
punishment of censure imposed by the 2nd respondent in PR 52/2010 dt
21.7.2010 and promote her as Inspector of Police and grant her all
consequential service and monetary benefits.
For Petitioner : Mr.M.Ravi
For 1st Respondents : Mr.K.Magesh
Special Government Pleader
1/14
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W.P.No.21154 of 2011
ORDER
The prayer sought for in this writ petition is for a writ of mandamus
directing the first respondent to consider the claim of the petitioner for
promotion as Inspector of Police by including her name in the C list of Sub-
Inspector of Police fit for promotion as Inspector of Police for the panel
year 2010-11 without reference to the punishment of censure imposed by
the second respondent in PR 52/2010 dated 21.7.2010 and promote her as
Inspector of Police and grant her all consequential service and monetary
benefits.
2.The petitioner entered into service at the respondent Department as
directly recruited Sub Inspector of Police through a selection conducted by
the Tamil Nadu Uniform Services Recruitment Board in the year 1997-1998
and she was appointed on 16.04.1999, she successfully completed the
training and her seniority has been fixed by the Police Training College at
Serial No.285.
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W.P.No.21154 of 2011
3.According to the petitioner, since she had been with the sufficient
seniority and having the merit for consideration of her claim for promotion
as Inspector of Police by including her name in the 'C' list in the year 2010-
2011, it is the case of the petitioner, that the promotional Board which
conducted for the preparation of the 'C' list of Sub Inspector of Police fit for
promotion as Inspector of Police for the year 2010-2011, taken into account
01.06.2010 as a crucial date for consideration of the panel dated 27.01.2011.
However, the name of the petitioner was not included in the 'C' list of Sub
Inspector of Police fit for promotion to the Inspector of Police for the year
2010-2011 for the reason that, there has been a disciplinary proceedings
initiated under Rule 3(a) of the Tamil Nadu Police Subordinate Service
(Discipline and Appeal) Rules (in short "the Rules"), where, the petitioner
ultimately was inflicted with the punishment of censure.
4.In this context, it is the further grievance of the petitioner that, by
virtue of the Government Letter dated 07.10.2005, which consisting of set
of instructions regarding preparation of panel for promotion, the theory of
check period was brought in, whereby, those who suffered with the
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W.P.No.21154 of 2011
punishment of censure will have a check period of one year, within which,
he or she may not be considered for promotion and for other penalties and
punishments, the check period is for five years.
5.Subsequently, before a Full Bench of this Court, several issues had
been referred for consideration, where, the validity and sustainability of the
Government Letter dated 07.10.2005 also was considered, where, the Full
Bench, by the decision / Judgment reported in 2011 (3) CTC 129 in the
matter of The Deputy Inspector General of Police, Thanjavur Range,
Thanjavur and others Vs. V.Rani, has ultimately held that, the Government
Letter dated 07.10.2005 stated to be the consolidated instructions regarding
the preparation of panel for promotion, issued by the Government, can
never be treated as Statutory Rules at all. Therefore, the annexures therein
are not enforceable as Statutory Rules especially with regard to a new
phrase inserted viz., 'check period' by imposing a total embargo on the right
of consideration of a Government Servant who has undergone punishment
for the period of one year in case of penalty of censure and five years in
other cases of minor penalties, as it has no legal basis at all.
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W.P.No.21154 of 2011
6.In view of the import of the said order passed by the Full Bench of
this Court and the same since has been upheld by the Hon'ble Apex Court,
the very import of the Government Letter dated 07.10.2005 has lost its
validity and consequence and once a Government Letter is quashed by this
Court or declared to be unenforceable, such effect would be date back from
the date of issuance of the Government Letter itself. Therefore, the embargo
put against the petitioner on the crucial date i.e., on 01.06.2010 for the
preparation of 'C' list of Sub Inspector of Police fit for promotion to the post
of Inspector of Police for the year 2010-2011 cannot be made against the
petitioner. Therefore, she would be entitled to get included her name in the
'C' list, accordingly, she shall also be entitled to be considered for promotion
to the post of Inspector of Police as on 07.02.2011, the date on which the
other incumbents had found place in the 'C' list for promotion.
7.Making these contentions, Mr.M.Ravi, learned counsel appearing
for the petitioner would further submit that, in view of the non-inclusion of
the name of the petitioner in the 'C' list for 2010-2011, because of the
embargo caused due to the import of the Government Letter dated
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W.P.No.21154 of 2011
07.10.2005, the petitioner lost her promotional chance of becoming the
Inspector of Police in the year 2011. Therefore, such a promotion shall be
considered for the petitioner atleast notionally from that date and
correspondingly, subsequent or consequential service and other benefits be
conferred on her, he contended.
8.Per contra, Mr.K.Magesh, learned Special Government Pleader
appearing for the respondents, would submit that, no doubt, the Government
Letter dated 07.10.2005 was declared to be unenforceable by the orders of
the Hon'ble Full Bench, referred to above, dated 27.04.2011, however, such
import of the Full Bench Judgment will have a prospective effect only from
the date of the Judgment. Therefore, before the date of Judgment since the
promotion has been effected on 07.02.2011, the petitioner's candidature
since was not included in the 'C' list in view of the then prevailing legal
position, where, admittedly the petitioner was facing a 3(a) disciplinary
proceedings and subsequently was inflicted with the punishment of censure,
therefore, in both way that is the pendency of the 3(a) proceedings as well
as the check period of one year in view of the punishment of censure, the
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W.P.No.21154 of 2011
petitioner was not eligible or entitled to get included in the 'C' list with the
crucial date of 01.06.2010. Therefore, consequently, she would also not be
eligible for consideration for promotion as to 07.02.2011, as on that date the
import of the Government Letter dated 07.10.2005 was in force since the
Full Bench decision came in only later, i.e., on 27.04.2011.
9.I have considered the rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
10.The issue raised in this writ petition is in very narrow compass,
where, the contention of the learned counsel appearing for the petitioner is,
since the Government Letter dated 07.10.2005 has already been declared to
be unenforceable by the orders of the Full Bench of this Court dated
27.04.2011 and the same has been upheld by the Hon'ble Apex Court, it has
become final, therefore that effect of the Full Bench decision definitely will
have an effect from the date of the Government Letter dated 07.10.2005.
The further contention of the learned counsel for the petitioner is that, once
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W.P.No.21154 of 2011
the import of the Government Letter dated 07.10.2005 is gone, certainly, on
the crucial date i.e., on 01.06.2010, the petitioner was very well eligible to
be considered for inclusion in the 'C' list of Sub Inspector of Police,
consequently, she should have been considered for promotion on
07.02.2011, when promotion was effected, pursuant to the 'C' list.
11.The said submission made by the learned counsel appearing for
the petitioner is appealing to this Court. The reason being that, when several
issues were referred to the Full Bench, referred to above, one of the issue
was, whether the Government Letter dated 07.10.2005 will have a Statutory
force to be enforced. Answering to the said query, the Full Bench has held
as follows:
"23. In the light of the above said categorical legal position,
the submission of Mr.Ravi, learned counsel appearing for the
respondent in W.A.280 of 2011 as well as for petitioner in
W.P.Nos.45960 of 2006 and 955 of 2007 and apart from
Mr.R.Subramanian , learned counsel appearing for the
petitioner in W.P.No.47252 of 2006, that the letter of the
Government dated 7.10.2005 cannot be equated with the
statutory rules framed under proviso to Article 309 of the
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W.P.No.21154 of 2011
Constitution of India has to be certainly upheld. The
Government letter dated 7.10.2005 stated to be the
consolidated instructions regarding preparation of panel for
promotion issued by the Secretary to Government, not even
with the authority of the Governor of State, can never be
treated as statutory rules at all. Therefore, the annexures
therein are not enforceable as statutory rules especially with
regard to a new phrase inserted viz., check period by imposing
a total embargo on the right of consideration of a Government
servant who has undergone punishment for the period of one
year in case of penalty of censure and five years in other cases
of minor penalties, as it has no legal basis at all."
12.When the Letter dated 07.10.2005 of the Government, in
unequivocal terms having been declared by the Full Bench as
unenforceable, it does not have any Statutory force as it was not issued with
the authority of the Governor of the State also and the respondents' stand
that, till such a declaration is made by the Full Bench, the effect of the said
Letter dated 07.10.2005 would be enforceable, is absolutely against the
spirit of the judgment of the Full Bench.
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W.P.No.21154 of 2011
13.Moreover, it is the settled proposition that, once the
Constitutionality or vires or the sustainability of the Statutory Provision or
Government Orders or Government Letters are questioned before the Court
of Law and ultimately, Courts held such Statutory Provisions, Government
Orders and Government Letters are unenforceable or declared to be
unconstitutional, certainly the effect of such declaration would date back
from the date actually a Statutory Rule, Regulations, Government Orders
and Government Letters issued came into force.
14.If the said principle is applied to the facts of the present case,
certainly, the import of Government Letter dated 07.10.2005 shall not have
any effect from the date it was issued. Therefore, as on 01.06.2010, it shall
be presumed that, there was no instructions as contained in the said
Government Letter dated 07.10.2005 for having a check period of one year
for those who have been suffered with a punishment of censure, to be
considered for promotional avenue.
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W.P.No.21154 of 2011
15.Here in the case in hand, the crucial date is 01.06.2010, the actual
promotion date was on 07.02.2011. Therefore, during these period no other
disciplinary proceedings was pending against the petitioner and no other
punishment was suffered by her. Therefore, merely because of the import of
the Government Letter dated 07.10.2005, the action on the part of the
respondent in not including the name of the petitioner in the 'C' list by
taking the crucial date as 01.06.2010 was unjustifiable act and therefore, by
virtue of the aforesaid legal position as well as the factual matrix, this Court
feels that, the petitioner is entitled to get inclusion in the 'C' list with the
crucial date of 01.06.2010 and consequently, she will also be entitled to get
promotion along with the other eligible persons who got promotion on
07.02.2011.
16.In that view of the matter, this Court is inclined to dispose of this
writ petition with the following orders.
(i) That there shall be a direction to the respondents to
consider the candidature of the petitioner for inclusion in the
'C' list with crucial date i.e., on 01.06.2010, of Sub Inspector of
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W.P.No.21154 of 2011
Police fit for promotion to the post of Inspector of Police for
the panel year 2010-2011 and accordingly, confer such
promotion to the petitioner as on 07.02.2011 notionally.
(ii) As a sequel, the petitioner shall be entitled to get all
other service and attendant benefits without the difference of
pay as Inspector of Police during the notional promotion period
and such benefits shall be calculated and be conferred on the
petitioner by giving the promotion also. The aforesaid needful
shall be undertaken by the respondents within a period of three
months from the date of receipt of a copy of this order.
17.With these directions, this Writ Petition is ordered accordingly.
However, there shall be no order as to costs.
24.02.2021
Index: Yes
Speaking Order: Yes
Sgl
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W.P.No.21154 of 2011
To
1.The Director General of Police
Dr Radhakrishnan Salai,
Mylapore, Chennai - 4.
2.The Superintendent of Police,
Thanjavur, Thanjavur District.
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W.P.No.21154 of 2011
R.SURESH KUMAR, J.
Sgl
W.P.No.21154 of 2011
24.02.2021
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