Madras High Court
The Director General Of Police vs A.Subramanian on 11 December, 2023
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
Writ Appeal No.726 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.12.2023
CORAM
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR. JUSTICE G.ARUL MURUGAN
Writ Appeal No.726 of 2020
and C.M.P.No.9847 of 2020
The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 4. ....Appellant
Vs.
A.Subramanian ... Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, to set
aside the order dated 02.11.2018 made in W.P.No.9854 of 2008 and
allow this writ appeal.
For Appellant : Mr.K.V.Sajeev Kumar,
Special Government Pleader
For Respondent : No appearance
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Page No.1/10
Writ Appeal No.726 of 2020
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR,J.)
This writ appeal has been directed against the order passed by the
Writ Court dated 02.11.2018 made in W.P.No.9854 of 2008.
2. Before the Writ Court, the respondent A.Subramanian moved a
writ petition seeking to quash the order dated 10.03.2008, under which,
the Director General of Police had rejected the representation given by
the said Subramanian, Head Constable for upgrading him to the post of
Special Sub-Inspector on the ground that because of the currency of
black mark imposed on him on 08.02.2007 his name cannot be
considered for upgradation for the post of Special Sub-Inspector.
3. The said writ petition was heard and allowed by the learned
Judge by the impugned order dated 02.11.2018.
4. Assailing the said order, Mr.K.V.Sajeev Kumar, learned Special
Government Pleader appearing for the appellant would contend that the
learned single Judge finding that mere black mark cannot be construed to
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be a severe punishment. Therefore, the Court has expressed the view that
the petitioner is entitled for consideration for the upgradation for the year
2004 as it may be construed that the black mark is not a punishment.
Therefore, the petitioner since has not suffered any punishment, he is
entitled to upgradation is correct, even then the respondent/writ
petitioner is not entitled to get such upgradation in view of the law
having been declared by the Full Bench of this Court in the case of State
of Tamil Nadu Vs. C.Srinivasan in W.A.Nos.3748 of 2019 & etc.,
batch dated 04.02.2022.
5. The learned Special Government Pleader also relied upon a
Division Bench of this Court dated 24.07.2023, where on of us (RSKJ) is
a party, to support his contention.
6. We have heard the learned Special Government Pleader
appearing for the appellant. Even though notice had been sent to the
respondent, it has been returned as no such person and the private notice
also could not be served, we fell that no useful purpose would be served
in making further attempt to serve notice to the respondent as it has been
returned as no such person. Moreover in view of the order, which we are
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going to passed based on the law having been declared by the Full Bench
as stated supra, it would be an empty formality in making further attempt
to serve the sole respondent.
7. Insofar as the entitlement of the respondent to seek such
promotion or upgradation to the post of Special Sub-Inspector is
concerned, it is based on the G.O that has been issued by the Government
for giving such promotion and upgradation constantly from the Post of
Grade -II, Police Constable to Grade – I, Police Constable, Grade – I
Police Constable to Head Constable and Head Constable to Special Sub-
Inspector after completing certain years of service.
8. In this regard, an interpretation that was given by the Division
Bench in the case of The Government of Tamil Nadu Vs. V.Samy [in
short, V.Samy's case] and another view taken by the another Division
Bench in Review application Nos.70 of 2015 & etc., batch in the matter
of The Principal Secretary to Government Vs.V.Ramachandran , the
issue since had been referred to a Full Bench in the case of State of
Tamil Nadu Vs. C.Srinivasa, the Full Bench has held that the Division
Bench in Samy's case did not laid down the correct law and therefore,
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the Full Bench upheld the law laid down by the Division Bench in
V.Ramachandran's case, thereby it is not an automatic promotion in
respect of these posts of Police Department from Grade-II, Police
Constable to Grade -I, Police Constable and from Grade -I, Police
Constable to Head Constable and from Head Constable to Special Sub-
Inspector.
9. The relevant portion of the order that has been passed by a
Division Bench of this Court on 24.07.2023 in W.A.No.1705 of 2019
and 1748 of 2018 in the case of Government of Tamil Nadu
Vs.Jeevakumar and Ors. is extracted hereunder for easy reference and
better appreciation:
“7. The said order was passed based on the judgment
of a Division Bench made in W.A.No.1506 of 2011 & etc.,
batch in the matter of The Government of Tamil Nadu Vs.
V.Samy [in short, Samy's case].
8. However, subsequently another Division Bench in
a batch of Review application Nos.70 of 2015 & etc., batch
in the matter of The Principal Secretary to Government
Vs.V.Ramachandran has taken a different view based on
the relevant Government Orders, which were occupying the
field.
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9. Since there has been two divergent views taken by
two different Division Benches of this Court, the issue had
been referred to a Full Bench for an authoritative
pronouncement in W.A.Nos.3748 of 2019 & etc., batch in
the matter of State of Tamil Nadu Vs. C.Srinivasan, where
a Full Bench of this Court by order dated 04.02.2022 has
held by declaring the law to the following effect:
“42. In view of the above discussion, we
proceed to answer the second question that has
been referred to this Full Bench hereunder:-
“We hold that the Division Bench in V.Samy
case did not lay down the law correctly and we
uphold the law laid down in V. Ramachandran case
to the extent that there is no deemed upgradation or
deemed promotion contemplated in the relevant
Government orders and the benefit of
upgradation/promotion to the next level can be
granted/claimed only on completion of the
qualifying service in each level/rank as prescribed
in the relevant Government Orders. At the risk of
repetition, insofar as understanding the expression
“retrospective operation” is concerned, we hold
that The Government Orders operate prospectively
but it imposes/grants new results in respect of a
past event. In other words, the Government Order
operates forward but it looks backward and in that
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it attaches new consequences for the future to an
event that took place before the Government Order
was issued. If the Government Orders are
understood in this perspective, there is no need to
get into the issue of “retrospective operation.
Thus, we are of the view that the Division Bench
while rendering the judgment in V.Ramachandran
case has dealt with the Government orders in its
proper perspective and the judgment in V.Samy
case is hereby overruled”.
10. Therefore, what has been held in V.Samy's case
has been held to be not the correct law by the Full Bench in
their judgment as stated supra. Therefore, following
V.Samy's case directions were given and the writ petitions
were allowed by the learned Judge, which are impugned
herein, hence, these writ appeals are deserve to be allowed
in view of the Full Bench judgement.
11. It is to be noted that, similar writ appeals in
many numbers came up for consideration before another
Co-ordinate Bench in W.A.No.3748 of 2019 & etc., batch
in the matter of State of Tamil Nadu Vs. C.Srinivasan
dated 15.03.2022, where this Court allowed all those
appeals filed by the State in the following terms:
“6.In view of the above submissions and
taking into consideration the ratio laid down by the
Larger Bench of this Court, these Writ Appeals are
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hereby set aside and the respective orders of the
learned Single Judges are hereby set aside. No
costs. Consequently, connected Miscellaneous
Petitions are closed.”
12. In view of the same, we feel that these appeals
are also entitled to succeed and accordingly, these appeals
are allowed. No costs. Connected miscellaneous petitions
are closed.
10. Therefore, assuming that the black mark is not a punishment to
be construed as a punishment for the purpose of withholding the
promotion or upgradation is concerned as has been held by the learned
Judge, otherwise the respondent is not eligible or entitled to seek such
promotion or upgradation in view of the law having been declared by the
Full Bench in C.Srinivasan's case as stated supra and it has been
followed consistently in all other similar matters including the Division
Bench Judgment, where one of us (RSKJ) is a party as referred to above
dated 24.07.2023, hence, we are not inclined to accept the direction
given by the learned Judge in the order impugned by giving direction to
the appellant Department to give promotion to the respondent to the post
of Special Sub-Inspector.
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11. Resultantly, this appeal deserves to be allowed and
accordingly, it is allowed. No costs. Connected miscellaneous petition is
closed.
(R.S.K.,J.) (G.A.M., J.)
11.12.2023
Index: Yes/No
Speaking Order/Non Speaking Order
Neutral Citation:Yes/No
mp
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R.SURESH KUMAR, J.
and
G.ARUL MURUGAN, J.
mp
11.12.2023
https://www.mhc.tn.gov.in/judis
