IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12/04/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.13569 of 2005
W.P.M.P.No.39497 of 2005
B. Kamala ... Petitioner
-Vs-
1.The Director
General of Police,
Chennai.
2. The Superintendent of Police,
Cuddalore. ... Respondents
This writ petition has been filed under Article 226 of Constitution of
India, for issuance of a writ of certiorarified mandamus calling for the
records on the file of the first respondent relating to the impugned order
dated 7.3.2005 bearing ref.Na.Ka.No.022729/Appointment.3 /2005-47, quash the
same and consequently direct the respondents to offer appointment to the
petitioner to the post of Police Constable Grade-II on the basis of her
selection with effect from the date of appointment of others of the same
select list with due seniority, service, monetary benefits and backwages.
!For Petitioner : M/s.Sai, Bharath & Ilan
^For Respondents : Mrs.D.Malarvizhi,
Government Advocate
:O R D E R
Prayer in the writ petition is to quash the order of the first
respondent dated 7.3.2005 and direct the respondents to offer appointment to
the petitioner as Police Constable Grade-II on the basis of her selection with
effect from the date of date of appointment of others of the same select list
with due seniority, service, monetary benefits and backwages.
2. The brief facts as stated in the affidavit are that the
petitioner is a resident of Reddi Chavadi, Cuddalore District, without any
social or other support and during the year 1997 one Kumaresan claimed himself
as an affluent businessman and owner of cashewnut thope, married petitioner’s
sister on 7.7.1997 and at that time the petitioner was only 15 years old,
studying 9th standard. The said Kumaresan misbehaved with the petitioner, for
which she objected and therefore he treated petitioner’s sister with cruelty.
On 20.11.2000, Kumaresan abducted the petitioner forcibly in a car and
threatened her that unless she marry him, he will leave the petitioner’s
sister and her baby and that her sister will have to face his physical torture
everyday. Therefore, according to the petitioner, she was forced to marry the
said Kumaresan on 24.11.2000 and after few weeks, he deserted the petitioner
as well as her sister.
3. Petitioner further states that afterwards she came to know
that the said Kumaresan is a professional cheat and he had already married one
Anitha and cheated her. It is the case of the petitioner that the said
Kumaresan was preparing to marry yet another girl and therefore petitioner’s
sister lodged a complaint with the All Women Police Station, Cuddalore,
bringing to light the offences committed by Kumaresan, which case was later on
registered as C.C.No.349 of 2000. According to the petitioner, she was
cheated, ill-treated and is a victim of sexual harassment and exploitation.
She was given counselling in the All Women Police Station and she is a
destitute woman.
4. Petitioner further states that she came to know that the
respondents have advertised for selection to the post of Women Police
Constables Grade-II in the year 2002-2003 and as she was having educational
and physical qualification, applied for the said post and she came out
successful in the written test, physical test and also in the interview.
Petitioner was selected for the said post and was awaiting for her appointment
orders. At this stage, the said Kumaresan sent petitions before the
respondents, and based on the same, the department questioned the petitioner
and she revealed the entire facts, pursuant to which, the impugned order dated
7.3.2005 was issued stating that the petitioner’s conduct is in violation of
rule 14(b) of the Conduct Rules. Petitioner was served with the said order on
22.3.2005 and thereafter petitioner submitted a representation on 13.4.2005
and as she has not received any reply, the present writ petition has been
filed.
5. In the counter affidavit filed on behalf of the second
respondent it is contended that the petitioner having married Kumaresan
knowing fully well that he had already married her sister, violated Rule 14(b)
of the Tamil Nadu Special Police Subordinate Service Rules and Rule 12(b) of
the Tamil Nadu State Subordinate Service Rules and therefore the petitioner is
not entitled to get appointment in view of the said rules. According to the
respondents, the said rules prohibit appointment of a woman, who married a
person having a living wife.
6. The learned counsel appearing for the petitioner submitted
that the petitioner is a victim of circumstances and she never involved in
immoral relationship and she was compelled to marry Kumaresan due to the
circumstances stated above and the she being a destitute, cheated by the said
Kumaresan, she is entitled to get compassion from the department and is also
entitled to get appointment as woman Police Constable Grade-II. The learned
counsel for the petitioner also submitted that the petitioner is not an
accused in C.C.No.349 of 2002, but she is only a witness as could be seen from
the FIR in crime No.12 of 2 001 on the file of the All Women Police Station,
Cuddalore. The learned counsel also submitted that the case filed by the
first wife of Kumaresan viz., Anitha in O.S.No.396 of 2001 praying for
declaration that the said Kumaresan is the legally wedded husband of the said
Anitha alone and not of Pramila, sister of the petitioner and Kamala, the suit
was decreed by the District Munsif Court, Cuddalore by judgment and decree
dated 19.10.2004. According to the learned counsel, the above facts reveal
that the said Kumaresan cheated the petitioner and her sister and married
them, sexually exploited them and that the petitioner and her sister are now
left in lurch as destitute women.
7. I have considered the submissions made by the learned counsel
for the petitioner as well as the learned Government Advocate.
8. The grievance of the petitioner as stated in the affidavit is
that she was cheated by Kumaresan and she was forced to marry Kumaresan, who
is also husband of petitioner’s sister and after few weeks of the marriage,
Kumaresan left the company of the petitioner and her sister and now they are
living as destitute women. The fact of cheating by the Kumaresan is
established in the suit filed in O.S.No.396 of 20 01 on the file of the
District Munsif Court, Cuddalore and also in the criminal complaint given
against the petitioner’s husband by the sister of the petitioner Pramila.
9. The learned Government Advocate is technically right in
contending that the petitioner is not entitled to get appointment in view of
Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules and Rule
12(b) of the Tamil Nadu State and Subordinate Service Rules. The above rules
being statutory bar standing in the way of petitioner claiming appointment,
this Court is unable to give relief to the petitioner and in case the
petitioner is ordered to be given appointment, it will be in violation of the
statutory rules. It is well settled in law that no court shall pass orders in
violation of the statutes. Applying the said principle, I am unable to allow
the writ petition filed by the petitioner straight away.
10. However, having regard to the facts narrated by the petitioner
and taking note of the petitioner’s pitiable condition, I am of the view that
it is open to the petitioner to approach the Secretary, Home Department,
Government of Tamil Nadu seeking exemption to the applicability of the rule
14(b) of the Tamil Nadu Special Police Subordinate Service Rules and Rule
12(b) of the Tamil Nadu State Subordinate Service Rules and if an application
to that effect is submitted, the Government may sympathetically consider the
same for relaxation of the said rules, so that petitioner can be appointed as
Woman Police Constable based on her selection. I am inclined to make such an
observation taking note of the peculiar circumstance of the case and it is
upto the Government to consider the request, if made by the petitioner, and
pass appropriate orders. If exemption is granted by the Government, the
petitioner is entitled to get appointment based on her selection. Petitioner
is given liberty to submit a representation to the Government within a period
of four weeks from the date of receipt of copy of this order and on receipt of
the same the Government is directed to consider the same on merits, within
eight weeks therefrom. Registry is directed to mark a copy of this order to
the Secretary, Home Department, Government of Tamil Nadu, Fort St.George,
Chennai-9.
11. The writ petition is disposed of with the above observations
and directions. No costs. Connected WPMP No.39497 of 2005 is dismissed as
unnecessary.
vr
To
1. The Director General of Police, Chennai.
2. The Superintendent of Police, Cuddalore.
3. The Secretary, Home Department, Government of Tamil Nadu,
Fort St.George, Chennai 9.