Madras High Court
P.Pandurangan vs The Secretary To Government on 17 November, 2021
W.P.No.7138 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.11.2021
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.7138 of 2011
P.Pandurangan .. Petitioner
vs.
1.The Secretary to Government,
Home (Police II) Department,
Fort St.George, Chennai-9.
2.The Director General of Police,
Mylapore, Chennai-4. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus calling for the
records of the 2nd respondent in connection with the impugned orders passed
by him in RC.No.213620/GB2(2)/2010 dated 29.11.2010 and quash the same
and direct the respondents to consider the claim of the petitioner for
promotion as Deputy Superintendent of Police (Cat-1) notionally by
including his name in the panel of Deputy Superintendent of Police,
Category-I for the year 2006-07 and promote him as Deputy Superintendent
of Police (Cat-1) and grant him all consequential service and monetary
benefits.
For Petitioner : Mr.K.Venkataramani, Senior Counsel
for M/s.M.Muthappan.
For Respondents : Mr.Silambanan,
Additional Advocate General, assisted by
Mr.T.Arunkumar,
Additional Government Pleader for R1 & R2
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1
W.P.No.7138 of 2011
ORDER
The writ petitioner, challenging the impugned order of the second
respondent in and by which the petitioner's request to consider his name for
retrospective promotion as Deputy Superintendent of Police (Cat-1) from
2006-2007 panel and to grant him all consequential service and monetary
benefits came to be rejected, has filed this writ petition.
2. The case of the petitioner is that he entered the service as Grade I
Police Constable on 08.01.1966 in Dharmapuri District and promoted as
Grade I Police Constable on 01.12.1971 and further promoted as Constable
on 21.09.1979, as Sub-Inspector Police on 01.12.1985 and as Inspector of
Police on 21.05.1996 and after attaining the age of superannuation, he retired
from service on 31.07.2006 without any adverse record of service. It is
averred in the writ petition that prior to 01.06.2006, for promotion to the post
of Deputy Superintendent of Police, Category-I by transfer of service, an
Inspector of Police must not have completed 55 years of age. Subsequently,
the age restriction which was available in the rule was amended, vide
G.O.Ms.No.66, Home (Pol-2) Department dated 12.01.2007 with
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W.P.No.7138 of 2011
retrospective effect from 01.06.2006. It is the grievance of the petitioner
that, though the name of the petitioner was recommended for promotion to
the post of Deputy Superintendent of Police, on account of his
superannuation on 31.07.2006, his claim was not considered for promotion to
the said post.
3. Mr.K.Venkataramani, learned Senior Counsel appearing for the
petitioner would submit that the petitioner having served in the Police
Department for more than 40 years and age restriction was also having been
relaxed vide the aforesaid Government Order for promotion to the post of
Deputy Superintendent of Police, Category-I, the respondents ought to have
considered the claim of the petitioner and should have granted notional
promotion, even though he was superannuated from service before the
publication of the promotion panel on 31.07.2006. The learned Senior
Counsel for the petitioner would further submit that the Rules were amended
on 12.01.2007 removing the age restriction for the post of Deputy
Superintendent of Police, retrospectively from 01.06.2006 and hence the
petitioner has become fully qualified on 01.06.2006 in view of the removal of
the age relaxation and remained in service till 31.07.2006 and therefore, the
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W.P.No.7138 of 2011
petitioner is entitled for getting the benefit of the amended rule and prays for
appropriate orders.
4. Per contra, Mr.Silambanan, learned Additional Advocate General
assisted by Mr.T.Arunkumar, learned Additional Government Pleader
appearing for the respondents has drawn the attention of this Court to the
counter affidavit filed by the first respondent and would submit that the
process of promotion will come into effect from the date of approval by the
Government and as far as the petitioner's claim is concerned, the panel for
promotion to the post of Deputy Superintendent of Police (Category-I) was
approved by the Government on 05.11.2007, but the petitioner has already
retired from service on attaining superannuation on 31.07.2006. It is further
submitted by the learned Additional Advocate General that the amended rule
removing the age restriction with retrospective effective from 01.06.2006
came to be passed on 12.01.2007 and at that time, the petitioner had already
retired from service on 31.07.2006 and he was not eligible for inclusion in
the promotion panel and therefore, prays for dismissal of this writ petition.
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W.P.No.7138 of 2011
5. This Court has considered the rival submissions and also perused
the materials placed before it.
6. The issue involved in this writ petition is whether the petitioner,
who has retired after attaining the age of superannuation, is eligible for
notional promotion to the post of Deputy Superintendent of Police (Category-
I), in view of the amended rule removing the age restriction with
retrospective effect?
7. It is the stand of the respondents that as per the rules prevalent
earlier, the petitioner was not considered for promotion and after he retired
from service on 31.07.2006, the rule was amended by the Government vide
G.O.(Ms) No.66, Home (Pol-2) Department dated 12.01.2007 removing the
upper age limit for promotion of Inspector of Police as Deputy
Superintendent of Police, with retrospective effect from 01.06.2006 and the
process of promotion will come into effect only from the date of approval of
promotion panel by the Government and in the case on hand, the panel was
approved by the Government on 05.11.2017, after the petitioner's retirement
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W.P.No.7138 of 2011
and therefore, the benefit of the amended rules cannot be given effect to in
favour of the petitioner.
8. An identical issue came up before the Delhi High Court in
W.P.(C)No.5359 of 2009 in the case of Ram Krishna Sharma v. Union of
India and others, wherein the High Court of Delhi had dismissed the writ
petition filed by the petitioner therein challenging the order of Tribunal
rejecting the notional promotion sought for by the petitioner after
superannuation. The aforesaid writ petition was dismissed by the Delhi High
Court by referring to the decision of the Hon'ble Supreme Court in Baijnath
Sharma v. Hon'ble Rajasthan High Court of Jodhpur & Another, reported
in 1988 SCC (L&S). The relevant portion of the judgment is extracted
hereunder:
“The Tribunal answered this question in favour of the
petitioner. Union of India came before this Court when it was held
that the decision of the Tribunal was erroneous & was contrary to
the judgment of the Supreme Court in UOI & Ors Vs. K.K.
Vadhera 1989 Supp. (2) SCC 625 as well as in the case of Baijnath
Sharma Vs. Hon’ble Rajasthan High Court at Jodhpur & Anr.
1988 SCC (L&S) 1754 discussed in that order. It was held:
22. We feel that the Tribunal erred on this count as
well. The thrust of the OM, which was issued soon after the
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W.P.No.7138 of 2011
decision of the Hon'ble Supreme Court in Baijnath Sharma
(supra) is to clarify that the superannuated employees should
not be considered for promotion where the DPC is being
held after their superannuation. The later part of the OM,
which is contradictory to the dictum of the Hon'ble Supreme
Court in Baijnath Sharma (supra) obviously cannot be given
effect to. Pertinently even the said OM does not in clear
terms say that the retired/superannuated employees, if
considered and recommended by the DPC would be granted
notional promotion from a back date. However, the Tribunal
has read this aspect into the OM which, in any event, it could
not have done.
23. In view of the aforesaid, we find that the decision
of the Tribunal is erroneous and the directions given therein
are contrary to the judgments of the Hon'ble Supreme Court
in K.K.Vadera (supra) as well as Baijnath Sharma (supra).
24. It is also contended by the respondent that similar
directions have been given by the Hon'ble Supreme Court in
Karam Singh (supra). We cannot accept this contention of
the respondent for the simple reason that the short order
passed by the Supreme Court in Karam Singh does not deal
with this issue. It appears that no such issue was raised
before the Hon'ble Supreme Court in that case and no
arguments were advanced in this regard. The Hon'ble
Supreme Court also did not consider the legal issue while
issuing the said direction. It cannot be cited as an authority
on the propositions under consideration. The other case
relied upon by the respondent i.e. Hamesh Mahajan (supra)
is not applicable to the facts of the present case. In that case
on a subsequent revision of seniority the petitioner ranked
senior to one Mr. Ramesh Chand Sehgal, who had
apparently been promoted. In these circumstances, the High
Court rejected the defence of the respondents that the
petitioner could not be granted benefits of selection grade
and notional promotion with retrospective effect since he had
already retired on 31.5.1999. As noticed hereinabove, the
respondent has not made out a case of his being superseded
by any of his juniors. He had claimed that Ms. Monideepa
Bannerjee had superseded him. However, that claim is not
correct since Monideepa Bannerjee ranked higher to the
respondent in the senior grade of IIS Group 'A'.
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W.P.No.7138 of 2011
25. Coming to the charge of discrimination against
him by the petitioner, on the basis of that, the petitioner had
promoted a large number of Sr. Grade officers of IIS Group
'A' to JAG notionally w.e.f 10.7.2002 and on actual basis
w.e.f. from the date of the taking over a charge, many of
whom in the meantime had retired. We find even this claim
to be misplaced. He claims that four of his colleagues, who
retired like him in the Sr. Grade of IIS Group 'A' have been
given notional promotion to Junior Administrative Grade
from retrospective date i.e. 7.2.2002. However, what is being
missed by the respondent is that all the persons promoted
retrospectively notionally w.e.f. 10.7.2002 to the Junior
Administrative Grade of the service were senior to the
respondent as per the revised seniority list as on 31.3.2000.
Had a junior of the respondent been promoted to the Junior
Administrative Grade, certainly the respondent would have
had a valid and enforcement claim to seek notional
promotion from retrospective date i.e. from the date on
which the junior was promoted. But this is not his case.
26. In view of the aforesaid, we set aside the impugned
order passed by the Tribunal in OA No. 192/2005 dated
8.7.2005 and allow the present writ petition leaving the
parties to bear their respective costs.”
9. In yet another decision, the Hon'ble Delhi High Court in the case of
Ranvir Singh Vs. Government of NCT of Delhi & Others (WP(C) No. 2969
of 2012 dated 24.05.2013), held as follows;
“4. The only question which calls for our consideration is
whether the petitioner is entitled to be promoted on notional basis
to the post of Principal. The admitted position is that the petitioner
stood retired on May 31, 2010 i.e. before the date of promotion
order, June 29, 2010. The issue is no more res integra inasmuch as
a Division Bench of this Court of which one of us, Pradeep
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W.P.No.7138 of 2011
Nandrajog, J. was a member had decided a batch of writ petitions,
lead matter being WP(C) No.8102/2012 Union of India & Anr. v.
K.L.Taneja on the subject as to when can a person be granted
promotion from a retrospective date. The Bench noted various
decisions of the Supreme Court on the point as under:-
"(i) 1987 (4) SCC 566 K.Madhavan & Anr. vs.UOI & Ors.
(ii) 1989 Supp (2) SCC 625 Union of India & Ors. vs. K.K.Vadera
& Ors.
(iii) 1995 (4) SCC 246 Vinod Kumar Sangal vs.UOI& Ors.
(iv) 1998 (7) SCC 44 Baij Nath Sharma vs. Hon'ble Rajasthan
High Court At Jodhpur & Anr.
(v) AIR 2004 SC 255 P.N Premachandran vs. The State of Kerala &
Ors.
(vi) AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar
& Ors.
(vii) 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.Dinesh
Kr.Sharma
(viii) 2007 (1) SCC 683 State of Uttaranchal & Anr. vs. Dinesh
kumar Sharma.
(ix) 2008 (14) SCC 29 Nirmal Chandra Sinha vs. UOI & Ors.
(x) 2010 (4) SCC 290 UOI & Anr. vs. Hemraj Singh Chauhan &
Ors."
....
7. The learned counsel for the petitioner would rely upon a
judgment of this Court in WP(C) 5549/2007, Dr. Sahadeva Singh v.
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W.P.No.7138 of 2011
Union of India & Ors. The said case can be differentiated on facts
inasmuch as in that case the petitioner was still working whereas in
this case he stood retired. Further, in the case in hand the
promotion order was issued after the petitioner had retired.
Further, the Tribunal in the impugned order relied upon a
judgment of this Court in the case in WP(C) 20812/2005 Union of
India v. Rajender Roy wherein this Court rejected a similar plea on
the ground that none of the juniors to the respondent was promoted
before his retirement. In this case also the Tribunal, in the
impugned order, rejected the claim of the petitioner on this very
ground. In other words, since no junior to the petitioner was
promoted before his retirement, he could not have claimed any
right for being promoted to the post of Principal. Further, if the
claim of the petitioner is allowed then the promotion order with
respect to around 128 Vice Principals promoted to the post of
Principals vide order dated June 29, 2010, need to be revised which
is impermissible.
8. We find no infirmity in the order of the Tribunal. The writ
petition is dismissed.”
10. This Court also had an occasion to deal with a similar issue in
W.P.No.14092 of 2015 dated 01.07.2020 [V.Vijayakumarasamy v. The
Government of T.N. & another] reported in 2020 (2) WLR 321 wherein this
Court, by relying upon the decisions of the Delhi High Court (cited supra),
had observed as follows:
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W.P.No.7138 of 2011
“23.The aforesaid decisions of the Hon'ble Supreme
Court and Delhi High Court were not placed before the Hon'ble
Division Bench of this Court while deciding the case in W.A.
No. 594 of 2018 and the Hon'ble Division Bench has not
considered the proposition of law laid by the decisions cited
supra. Therefore considering the facts and circumstances of the
case on hand and by relying upon the various decisions of the
Hon'ble Apex Court cited supra, the following principles of law
has been laid down in the aforesaid decisions:
(i) Service Jurisprudence does not recognize
retrospective promotion i.e a promotion from a back date.
(ii) If there exists a rule authorising the Executive to
accord promotion from a retrospective date, a decision to grant
promotion from a retrospective date would be valid because of
a power existing to do so.
(iii). Since malafides taints any exercise of power or an
act done, requiring the person wronged to be placed in the
position the person would find himself but for the malafide and
tainted exercise of power or the act, promotion from a
retrospective date can be granted if delay in promotion is found
attributable to a malafide act i.e deliberately delaying holding
DPC, depriving eligible candidates the right to be promoted
causing prejudice.
(iv) If due to administrative reasons DPC cannot be held
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W.P.No.7138 of 2011
in a year and there is no taint of malice, no retrospective
promotion can be made.”
11. In view of the stand taken by the respondents in the counter
affidavit and in the light of the decisions of the Delhi High Court cited supra
and followed by this Court in W.P.No.14029 of 2015 dated 01.07.2020 [2020
(2) WLR 321], this Court finds no merit in this writ petition. Accordingly,
this Writ Petition stands dismissed. No costs.
17.11.2021
Index : Yes / No
Internet : Yes / No
Jvm
To
1.The Secretary to Government,
Home (Police II) Department,
Fort St.George, Chennai-9.
2.The Director General of Police,
Mylapore, Chennai-4.
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W.P.No.7138 of 2011
D.KRISHNAKUMAR. J
Jvm
W.P.No.7138 of 2011
17.11.2021
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