IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.04.2010
CORAM:
THE HON'BLE MR.JUSTICE B.RAJENDRAN
W.P.No.34217 of 2006
P. Leebanse ... Petitioner
Versus
1. The Director General of Police,
Chennai.
2. The Commissioner of Police,
City Police,
Chennai. ... Respondents
PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.9592 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to direct the respondent to consider the name of the petitioner for inclusion of his name in the C-list of Head Constables fit for promotion as Sub-Inspector for the year 1998 as communicated by the 2nd respondent in RC No.Estt III/1/361/56370/98 CPO No.2156/98 dated 07.11.1998 without reference to the disciplinary proceedings pending against him in PR No.21/96 dated 22.08.1996 and promote him as Sub-Inspector by including his name in the C-list and grant him all consequential service and monetary benefits.
For Petitioner : Mr.K.Venkatramani, Senior Counsel
for Mr. M. Muthappan
For Respondents : Mrs. Lita Srinivasan
Government Advocate
O R D E R
The Original Application has been filed by the petitioner, praying to to direct the respondent to consider his name for inclusion of his name in the C-list of Head Constables fit for promotion as Sub-Inspector for the year 1998 as communicated by the 2nd respondent in RC No.Estt III/1/361/56370/98 CPO No.2156/98 dated 07.11.1998 without reference to the disciplinary proceedings pending against him in PR No.21/96 dated 22.08.1996 and promote him as Sub-Inspector by including his name in the C-list and grant him all consequential service and monetary benefits. On abolition of the Tamil Nadu Administrative Tribunal, the matter stood transferred to this Court and re-numbered as W.P.No.34217 of 2006.
2. The petitioner was directly recruited as Police Constable enlisted in the year 1970 and promoted as Grade-I Police Constable in the year 1989. The C list was prepared for promotion to the post of Sub Inspector for the year 1998 for the total vacancy of 56 from among the head constables who fulfil the conditions prescribed for such selection. The petitioner was included originally in the C List and he was directed by the Promotion Board to appear before the Range Promotion Board by the Memo of the 2nd respondent, dated 07.10.1998. The petitioners name was also published in the C list of Head Constables, who are eligible to participate in the Range Promotion Board. The petitioner also participated in the written test conducted on 16.10.1998 and has come out successfully. Thereafter, he was directed to appear for the drill test and viva voce examination on 02.11.1998 and 03.11.1998 respectively in which also he had come out successful. Thereafter, the petitioner was informed by the impugned order dated 07.11.1998 that his name could not be included, since he is facing the disciplinary proceedings relating to charge memo under Rule 3(b) of the TNPSS rules. As per para 5 of the letter dated 07.11.1998, it was stated that the Range Promotion Board had decided not to consider the name of the petitioner and others as shown in Annexure I for inclusion in the C list for the reason that a charge memo under Rule 3(b) is pending against them.
3. According to the petitioner, he was allowed to participate in the range promotion board, he passed in all those tests and therefore, he cannot be rejected only on the ground of pendency of the disciplinary proceedings relating to the year 1993. According to the petitioner, even the criminal case registered against him ended in acquittal as early as on 05.08.1998. The charge memo issued for similar set of facts was also stayed by the court. Of course, ultimately, punishment was imposed on him, however, only on the ground of pendency of disciplinary proceedings, his name should not be excluded from the ‘C’ list.
4. In this connection, the leaned senior counsel for the petitioner brought to the notice of this Court the subsequent development also namely the punishment imposed by the disciplinary authority was challenged before the tribunal in O.A.No.3649 of 1999 along with others and by an order dated 4th October 2001, the punishment order was set aside and matter was remitted back to the punishing authority. Subsequently, a review was filed and as per the review order, the punishment alone was set aside and in so far as remitting the matter back to the disciplinary authority was canceled. Therefore, in the result, the punishment was set aside. Pursuant to this order of the tribunal in the review application, the Commissioner of Police, by proceedings dated 28.06.2002, implemented the order and punishment awarded to the petitioner was canceled. In the meantime, on 28.02.2008, the petitioner retired from service. Under those circumstances, the learned senior counsel for the petitioner only prays that the petitioner is entitled for promotion from the year 1998 notionally as per the judgment of the Supreme Court reported in (C.O.Arumugam and others vs. State of Tamil Nadu and others) (1991 2 SCC 197), wherein the Supreme Court has categorically held that if the disciplinary proceedings were a bar for promotion and later on if the delinquent is exonerated or acquittal from the charges, they must be considered for promotion with retrospective effect from date on which the juniors were promoted. According to the learned senior counsel for the petitioner, in the Criminal case, the petitioner was acquitted and Disciplinary proceedings have been set aside and subsequently, he was promoted, but such promotion should date back to the original promotion date when the C list prepared for the year 1998.
5. The respondents have filed reply affidavit. The only reason in the reply was admittedly the disciplinary proceedings are pending at that time, therefore in the year 1998 panel, the petitioner’s name could not be included. Even though, C list was published, including the name of the petitioner, due to pendency of disciplinary proceedings, not only the name of the petitioner, but others who are similarly placed, was also removed. Merely because the petitioner participated in the written test or viva voce, that by itself will not give any right to the petitioner to seek promotion.
6. Heard both parties. The petitioners name was included in the C list for promotion to the post of Sub Inspector way back in the year 1998. The petitioner was also permitted to participate in the written test as well as viva-voce, however, his name was excluded from the ‘C’ list on the ground that a disciplinary proceedings was pending againjst him. It was also found that the petitioner was given punishment of stoppage of pay reduction by two stages for two years with cumulative effect. Admittedly, the currency of punishment was in force at the time when the ‘C’ list was drawn. Therefore, there is no illegality or infirmity in the order passed by the respondents excluding the name of the petitioner from the purview of selection process. Subsequently, the petitioner was given promotion based on the order passed by the Tribunal in revision application Nos.31 and 32 of 2005 in which the petitioner was also a party. The Tribunal set aside the punishment and remitted the matter back to the disciplinary authority for fresh consideration. Subsequently, by proceedings of the Commissioner of Police dated 28.06.2002, the very punishment imposed on the petitoner was revoked and the petitioner was also promoted as Sub Inspector of Police in the year 2003. The only point now remains to be answered is whether the promotion granted in the year 2003 would enure to the benefit of the petitioner to seek notional promotion in view of his retirement.
7. In this connection, the learned senior counsel relied upon the decision of the Supreme Court reported in (C.O.Arumugam and others vs. State of Tamil Nadu and others) (1991 2 SCC 197), for the proposition that when a person was given a clean chit from the disciplinary proceedings, any promotion or benefit given to such delinquent should dates back to the original date on which he is entitled to such benefit on par with his junior. In this case, as directed by the Tribunal, when the Commissioner of Police has taken up the case of the petitioner, by an order dated 28.06.2002, the punishment imposed on the petitioner earlier was totally revoked. Therefore, when once the punishment given to the petitioner at an earlier date was revoked by the competent authority, then the petitoner is entitled for promotion with effect from 1998.
8. Admittedly, the matter is pending consideration before the Tribunal and now before this Court and in the mean while, the petitioner retired from service. Therefore, as prayed for by the learned senior counsel for the petitioner, the petitioner is entitled to be given promotion from the year 1998 notionally so that he can get necessary benefit out of his retirement.
9. The only objection made by the learned Government Advocate appearing for the respondents is that the promotion given to the petitioner was a selection post and therefore the petitioner is not entitled for such promotion notionally. Even though it was a selection post, the petitioner participated in all the tests and came out successfully, but his name was excluded from the ‘C’ list by citing the pendency of disciplinary proceedings against him. Therefore, following the decision of the Honourable Supreme Court in the decision reported in (C.O.Arumugam and others vs. State of Tamil Nadu and others) (1991 2 SCC 197) I hold that the petitioner must be given promotion as Sub Inspector of Police notionally from 1998 with all other benefits of retirement thereof which he is entitled to.
10. The writ petition is allowed as indicated above. No costs.
ogy/rsh
To
1. The Director General of Police,
Chennai.
2. The Commissioner of Police,
City Police,
Chennai