Madras High Court
Abraham Amalanathan vs The Director General Of Police on 23 June, 2021
W.P.No.34648 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2021
CORAM
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
W.P.No.34648 of 2012
and M.P.Nos.1,1 of 2012 and 2014
Abraham Amalanathan ... Petitioner
Vs.
1. The Director General of Police
Chennai - 600 004.
2. The Deputy Inspector General of Polic e
Kancheepuram Range
Kancheepuram District
3. The Superintendent of Police
Kancheepuram District ... Respondents
PRAYER: The Writ Petition has been filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus,
calling for the impugned order passed by the 2nd respondent in
C.No.B1/9426/2011 dated 25.04.2012 and quash the same and consequently
direct the respondents herein to pay the arrears in the post of Special Sub –
Inspector of Police for the period from 01.01.2011 to 30.09.2011 to the
petitioner.
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For Petitioner : Mr.K.Raja
For Respondents : Mr.C.Selvaraj
Government Advocate (Civil Side)
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ORDER
Petitioner was working as Head Constable Grade- I. He was
eligible to be upgraded as Special Sub Inspector of Police. However, a
charge memo came to be issued against him on 11.02.2005. The petitioner
challenged the charge memo before this Court in W.P.No.12561 of 2005
and it was set aside by an order dated 07.04.2011. Thereafter, the 3rd
respondent has issued an order of upgradation in proceedings
C.No.A1/22270/2011 dated 20.09.2011. The petitioner has joined the post
on 30.09.2011. It is pertinent to note that the upgradation order was given to
10 persons including the petitioner, wherein all have joined on a subsequent
date. However, the monetary benefits were granted only from the date of
assumption of duty relying on Tamilnadu Government Fundamental Rules,
F.R.27. However, the other similarly place persons have approached this
Court and as per the direction of this Court they were granted monetary
benefits from the date of upgradation. But it was denied to the petitioner on
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the ground that a charge memo was pending and he assumed charges only
on 30.09.2011 and that he will be granted monetary benefit only from the
date of assumption and arrears cannot be granted.
2. From the records placed before this Court, it is seen that the charge
memo was set aside on 07.04.2011 by this Court. The order of upgradation
was issued on 20.09.2011, which is subsequent to the quashing of the
charge memo by this Court. Therefore, the issuance of charge memo will
not stand in the way of upgradation or assumption of charge. Secondly the
Tamilnadu Government Fundamental Rules 27 (17) will not apply to this
case. Fundamental Rule 27(17) reads as under:
17) In case where a Government servant has
been overlooked for promotion/appointment to the
next higher post but subsequently
promoted/appointed to that higher post after
restoration of his original seniority on appeal, his
pay shall be fixed on the date of assumption of
charge in the higher post on par with the pay of his
junior provided he has drawn the same rate of pay
as his junior in the lower post from time to time. If
he has not drawn the same rate of pay as his junior
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in the lower post, his pay shall be fixed, on the date
of assumption of charge, at the stage at which he
would have drawn pay on that date had he been
promoted/appointed to the higher post along with
his junior. In cases where seniority has been
restored on or after 19th September 1981, arrears
of pay and allowance consequent of fixation of pay
shall be admissible with effect from the date of
assumption of charge in the higher post; in cases
where seniority has been restored prior to 19th
September 1981, arrears shall be admissible only
with effect from the above date.
3. On a reading of the above, shows that in cases where he was
overlooked for promotion and on appeal seniority has been restored pay
fixation will be done with effect from the date of assumption of charge in
the higher post, which means till the refixation of seniority the person would
have continued in the lower category and therefore he is not entitled to draw
the pay in the superior category. Whereas in this case, the person was
upgraded with effect from 01.01.2011 and immediately after the issuance of
the order on 20.09.2011 he assumed charge. Naturally, it is not restoration
of seniority but it is an upgradation and therefore he will be entitled to all
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monetary benefits with effect from the date of upgradation. This Court in
respect of similarly placed persons already granted monetary benefits with
effect from the date of upgradation. In such circumstances, there is no
reason for the respondents to single out the petitioner for not granting
monetary benefits from the date of upgradation.
4. Learned counsel for the petitioner would also rely on the judgment
of this Court in W.P.No.48365 of 2006, wherein this Court relied on the
judgment of the Hon'ble Supreme Court in Union of India vs.
K.V.Janakiraman & Others, AIR 1991 SC 2010 has held that delay in
assuming charges or delay in reinstatement or upgradation which is not
attributable to the Government servant and the arrears of monetary benefits
shall not be denied to him.
5. In this case, I do not find much delay because the order was passed
only on 20.09.2011 and the petitioner has joined the post on 30.09.2011
within 10 days. The order takes effect from 01.01.2011 as specified therein.
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Therefore, the impugned order passed by the 2nd respondent in
C.No.B1/9426/2011 dated 25.04.2012 denying the monetary benefits is not
sustainable and accordingly set aside.
In fine, the writ petition is allowed and the respondents are directed to
settle the dues to the petitioner within period of six weeks from the date of
receipt of a copy of this order. No costs. Connected miscellaneous petitions
are closed.
23.06.2021
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W.P.No.34648 of 2012
To
1. The Director General of Police
Chennai - 600 004.
2. The Deputy Inspector General of Police
Kancheepuram Range
Kancheepuram District
3. The Superintendent of Police
Kancheepuram District
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W.P.No.34648 of 2012
M. GOVINDARAJ, J.
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W.P.No.34648 of 2012
and M.P.Nos.1,1 of 2012 and 2014
23.06.2021
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