Madras High Court
R.Paramasivam vs The Secretary To Government on 28 October, 2024
2024:MHC:3700
W.P.No.34540 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 27.09.2024
Pronounced on 28.10.2024
CORAM
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
W.P.No.34540 of 2015
R.Paramasivam ... Petitioner
Vs.
1. The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai – 9.
2. The Director General of Police Tamil Nadu,
Dr. Radhakrishnan Salai,
Mylapore, Chennai – 4. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records of
the respondents in connection wit the impugned order passed in ROC No.
152469/GBII(2)/2012 dated 21.06.2013 and quash the same and direct the
respondents to include the name of the petitioner in the panel of Inspector of
Police fit for promotion as Deputy Superintendent of Police, Category-I for
the year 2009-10 and promote him as Deputy Superintendent of Police, w.e.f.
05.10.2010 and grant him all consequential service and monetary benefits.
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.34540 of 2015
For Petitioner : Mr.K.Venkataramani,
Senior Counsel
for Mr. M.Muthappan
For Respondents : Mr. S.John J.Raja Singh,
Additional Government Pleader
*****
ORDER
The instant Writ Petition has been filed challenging the order in ROC
No. 152469/GBII(2)/2012 dated 21.06.2013 passed by the second
respondent, and direct the respondents to include the name of the petitioner
in the panel of Inspector of Police fit for promotion as Deputy
Superintendent of Police, Category-I for the year 2009-10 and promote him
as Deputy Superintendent of Police, with effect from 05.10.2010 and grant
him all consequential service and monetary benefits.
2. The learned Senior Counsel appearing for the petitioner would
contend that a person's claim for promotion can be deferred on three
grounds, namely: formulated charges, currency of punishment, and when
charge-sheeted in a criminal case. It is further contended by the learned
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Senior Counsel for the petitioner that, once a person is exonerated from the
charges, then his claim should be considered within 15 days from the date of
exoneration, and he should be promoted retrospectively with all
consequential service and monetary benefits on par with his immediate
junior. The learned Senior Counsel for the petitioner would also contend that
though the charge against the petitioner was pending on crucial date, when
the subsequent panel was published on 05.10.2010, the punishment imposed
against him was set aside by the Appellate Authority in the proceedings
dated 26.07.2012. Hence, the learned Senior Counsel would contend that the
petitioner is entitled to be considered for promotion for the panel year 2009-
2010.
2.1. The learned Senior Counsel for the petitioner would further
contend that, though the petitioner obtained an order directing the
respondents to consider his representation, the respondents have rejected his
representation on the erroneous ground that, on the crucial date, the charge
against the petitioner was pending. It is the contention of the learned Senior
Counsel for the petitioner that such rejection is contrary to the settled legal
principle. Hence, prayed to allow this Writ Petition.
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3. Per contra, the learned Additional Government Pleader appearing
for the respondents would vehemently contend that during the panel year
2009-2010, on the crucial date, the petitioner was charge-sheeted, and
subsequently, the punishment of censure was ordered against him. Only
during the panel year 2011-2012 his punishment was set aside, but there
were certain other charges. He would further contend that all the
impediments against the petitioner were cleared only during 2016-2017, after
that, he was considered for promotion temporarily for the post of Deputy
Superintendent of Police, and he had officiated as Deputy Superintendent of
Police on 07.02.2018. Hence, it is the contention of the learned Additional
Government Pleader that the petitioner cannot have any retrospective
promotion.
3.1. It was also the submission of the learned Additional Government
Pleader that, apart from the punishment of censure, which was set aside on
26.07.2012, the petitioner was subsequently imposed with punishments in
PR. No. 129/2012 dated 21.02.2014 and in P.R. No. 135/2013. Because of
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those currency of subsequent punishments, his name was not considered
even for the subsequent panel. However, after completion of all impediments
and the check period, he was duly considered for promotion. Therefore, the
learned Additional Government Pleader would contend that, the petitioner's
prayer for retrospective promotion is without any merits.
4. I have given anxious consideration to the submissions made on
either side.
5. The short point to be considered in the present Writ Petition is,
whether the petitioner was eligible to be included in the panel 2009-2010 for
the promotional post of Deputy Superintendent of Police.
6. While looking at the impugned order dated 21.06.2013, the request
of the petitioner was denied on the sole ground that the petitioner's order of
punishment of censure, was set aside belatedly, on 02.08.2011, and at that
point of time, he was facing another charge under Rule 3(b) of the Tamil
Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, in
PR.129 of 2012 at Kaniyakumari District. Therefore, the fact remains, during
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2009-2010 panel, the petitioner was not considered for promotion on the
basis of the punishment of Censure in PR.No.69 of 2010. It is an admitted
fact that such punishment of Censure was later set aside vide order dated
26.07.2012. In such view of the matter, the impediment projected against the
petitioner, for consideration in the panel period (11.11.2009 to 10.11.2010),
becomes dampened and attenuated.
7. No doubt, subsequently, within a short span of time more
specifically, even prior to the order of punishment passed in PR.No.69 of
2010 was set aside, the petitioner again was issued with yet another charge
memorandum, which again resulted in yet another punishment of Censure on
02.08.2011. As such, the issue to be considered is: when the petitioner was
not considered for the panel year 2009-2010 on the ground of currency of
punishment in PR. No. 69 of 2010, and later on when the same was set aside,
whether the subsequent delinquency arising after the panel period, namely
after the crucial date i.e., 01.06.2009, has any bearing in the promotion of
previous year's panel.
8. In this regard, the learned Senior Counsel for the petitioner relied
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upon the judgment of the Hon'ble Supreme Court of India in the case of
Delhi Jal Board Vs. Mahinder Singh reported in (2000) 7 SCC 210. The
ratio of the above judgment is, if any promotion was deferred based upon a
disciplinary enquiry or punishment, and subsequently if the first punishment
was set aside, then, mere pendency of another departmental enquiry for the
subsequent delinquency qua after the crucial date, would in no way affect the
benefit of the assessment of the first departmental promotional Committee,
which deferred consideration in the previous panel year. The relevant portion
of the judgment of Delhi Jal Board's case (cited supra), which reads as
follows:-
“5. The right to be considered by the Departmental
Promotion Committee is a fundamental right guaranteed under
Article 16 of the Constitution of India, provided a person is
eligible and is in the zone of consideration. The sealed cover
procedure permits the question of his promotion to be kept in
abeyance till the result of any pending disciplinary inquiry. But
the findings of the disciplinary inquiry exonerating the officer
would have to be given effect to as they obviously relate back to
the date on which the charges are framed. If the disciplinary
inquiry ended in his favour, it is as if the officer had not been
subjected to any disciplinary inquiry. The sealed cover
procedure was envisaged under the rules to give benefit of any
assessment made by the Departmental Promotion Committee in
favour of such an officer, if he had been found fit for promotion
and if he was later exonerated in the disciplinary inquiry which
was pending at the time when DPC met. The mere fact that by
the time the disciplinary proceedings in the first inquiry ended in
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his favour and by the time the sealed cover was opened to give
effect to it, another departmental enquiry was started by the
Department, would not, in our view, come in the way of giving
him the benefit of the assessment by the first Departmental
Promotion Committee in his favour in the anterior selection.
There is, therefore, no question of referring the matter to a
larger Bench.”
9. The Delhi Jal Board's case (cited supra) has been subsequently
followed by the Hon'ble Division Bench of this Court in W.A. No. 123 of
2015, dated 10.02.2015 [Director General of Police Vs. Saravanan.R], and
the learned Single Judge of this Court, in the case of K.Sivanandam vs.
State of Tamil Nadu and Ors., reported in MANU/TN/7084/2023. In the
case in hand, the only impediment against the petitioner to be included in the
panel of Inspector of Police fit for promotion to the Deputy Superintendent
of Police, for the year 2009-2010, was the currency of punishment imposed
in PR. No. 69 of 2010.
10. Admittedly, this said punishment was subsequently set aside on
26.07.2012. In this scenario, to based upon the ratio of the Delhi Jal Board's
case (cited supra), there are absolutely no impediments against the petitioner
for being considered in the panel year 2009-2010 for promotion to the post
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of Deputy Superintendent of Police.
11. Though there is a delay in filing the instant Writ Petition,
considering the peculiar circumstances of this case, as well as the fact that
the petitioner has superannuated from service, this Court is of the view that
the delay could not deter this Court from ordering in favour of the petitioner.
Hence, I find grounds to interfere with the impugned order dated 21.06.2013.
12. In the result, this Writ Petition is allowed, directing the second
respondent to notionally promote the petitioner to the post of Deputy
Superintendent of Police with effect from 05.10.2010 also directed to give
him with consequential benefits. It is made clear that, the petitioner would be
eligible to have monetary benefits on and from the actual date of officiating
the post of Deputy Superintendent of Police. No costs.
28.10.2024
kv
Index : Yes
Speaking order : Yes
Neutral Citation : Yes
https://www.mhc.tn.gov.in/judis
To
1. The Secretary to Government,
Home (Police II) Department,
Fort St. George, Chennai – 9.
2. The Director General of Police Tamil Nadu,
Dr. Radhakrishnan Salai,
Mylapore, Chennai – 4.
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C.KUMARAPPAN, J.
kv
order in
28.10.2024
https://www.mhc.tn.gov.in/judis
