IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.4.2009 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN W.A.No.839 of 2008 1. The Government of Tamil Nadu rep. by Secretary to Government Home Department Fort St.George, Chennai-9. 2. The Director General of Police Chennai-4. 3. The Commissioner of Police Chennai-8. .. Appellants Vs K.Kamalanathan .. Respondent PRAYER: Against the order of the learned Single Judge dated 13.2.2007 made in W.P.No.14722 of 2006. For Appellants : Mr.R.Thirugnanam Special Government Pleader For Respondent : M.S.Soundararajan JUDGMENT
(Delivered by P.JYOTHIMANI,J.)
The respondents in the writ petition have filed the present writ appeal against the order of the learned Judge dated 13.2.2007, by which the learned Judge has declared that the respondent herein/petitioner is entitled to the relief claimed, namely to include his name in the ‘C’ list drawn for Junior Promotion in the year 1980, while ordering that the respondent will, however, be entitled to all attendant benefits only from the date of joining the promotional post and not from the date on which he should have been considered for promotion for the said post.
2. The respondent has claimed that he should have been considered for promotion in the panel of the year 1980, whereas it is admitted that the name of the respondent has been included in the year 1993 and all the benefits have been given from 1993 onwards. The short point that was to be decided in the writ petition was about the benefits to be conferred on the petitioner from 1980 to 1993.
3. The respondent was enlisted as Grade-II Police Constable on 13.12.1973 in Madras City Police. He was, originally, having S.S.L.C. qualification and subsequently, in 1988, he passed B.A. Degree. He was working in Armed Reserve and transferred to Crime Branch, CID. It was stated that in October, 1980, tests were conducted in Crime Branch CID for Grade-II Police Constable to award Junior Promotion of Grade-I Police Constables, as per the office orders dated 3.10.1980 and 15.10.1980. The respondent had taken part in the said test. A list was drawn by such of those Grade-I Police Constables who passed the tests and the same was sent to the respective parent departments with a direction to include their names in the ‘C’ list. It is the case of the respondent that the names of all the Grade-II Police Constables, whose parent department was other than Madras City, were included. Even though the respondent’s name was placed in serial No.41, his name was not included in the ‘C’ list and he was not given his due promotion unlike others, who have taken part in the test conducted in Crime Branch, CID, Madras. When the respondent filed Original Application in O.A.No.4659 of 1993, which was transferred to this Court as W.P.No.14722 of 2006, he was working in Crime Branch, CID, Chennai.
4. The respondent has also brought out a similar instance of one Gopal, P.C.No.5256, who has taken part in the test at Crime Branch, CID along with the petitioner and was promoted by the order of the Chief Officer, discriminating the Grade-II Police Constables.
5. The respondent also brought another instance of one Subramani, P.C.No.410, who was in serial No.56, who also filed an Original Application and pursuant to the orders therein, was promoted as Head Constable and got all benefits.
6. In the reply filed by the appellants, the appellants are stated to have informed this Court that the name of said Gopal, P.C.No.5256, has been wrongly included in the Junior Promotion list of the year 1980 and steps would be taken to cancel the said inclusion.
7. However, the learned Judge found a communication from the Director General of Police in July, 2003, wherein the Director General has not only promoted the said Gopal as Grade-I Police Constable, but has also directed to promote him as Head Constable with effect from 10.3.1988. The order of the Director General of Police, which has been extracted by the learned Judge, is as follows:
“The Commissioner of Police, Chennai City is requested to implement the Chief Office order issued in Memo C.No.60497/NGB 3(3)/86, dated 22.10.1986. The petitioner, HC 5256 Gopal, Chennai City may be upgraded as Gr I PC with effect from 13.03.81 and as HC with effect from 10.03.88 on par with his immediate junior PC 6052, Umapathy (Sl.No.8(B) of Gr I ‘C’ list) as the further action on show cause notice issued by the Government was dropped as TAT order.”
8. The learned Judge, taking note of the fact that no steps have been taken to cancel the inclusion of the name of Gopal, P.C.No.5256, in the Junior Promotion List of 1980, but, on the other hand, he was ordered to be promoted as Head Constable with effect from 10.3.1988, has ordered that the said benefits should also be given to the respondent herein. It is also relevant to point out that, in fact, before the learned Judge, the learned Additional Government Pleader has taken a stand that the respondent should also be considered based on the consideration of Gopal, P.C.No.5256.
9. It is not in dispute, as submitted by the learned Special Government Pleader, that Gopal, P.C.No.5256, has got only 66 marks in the test, namely, less than the marks obtained by the respondent herein, i.e., 67.5 marks. His only contention is that the respondent has secured only 67.5 marks, while the cut-off mark required is 75 and therefore, the respondent is not entitled to claim a direction to include his name in ‘C’ list drawn for Junior Promotion in the year 1980, as a matter of right. It is also his further contention that while the panel was drawn in the year 1980, the respondent has chosen to approach the Tribunal only in the year 1993 and as such, there is substantial delay and that should be also taken against the respondent.
10. It is the submission of the learned counsel for the respondent that the point of delay has not been raised by the appellants, at any point of time, before the learned Judge. In this regard, he places reliance on the decision of the Supreme Court in Transmission Corporation of A.P. Ltd. v. P.Surya Bhagavan, AIR 2003 SC 2182, wherein it was held by the Supreme Court that when a point was not raised before the High Court, the same cannot be permitted to be raised for the first time before the Supreme Court. The relevant portion of the said judgment reads as follows:
“10. Question as to whether the respondent was overaged for entry into service was neither raised in the written statement nor was it argued before the High Court. Under the circumstances the appellant cannot be permitted to raise this point for the first time in this Court. The second point regarding the delay in filing the petition though was raised in the written statement, but, it seems the same was not pressed before the Bench at the time of arguments. It has not been stated in the grounds of appeal that this point was raised and argued before the Bench during the course of arguments and the Bench had failed to notice the same. In view of this we decline to go into this question as well.”
11. It is not in dispute that the name of said Gopal, P.C.No.5256, who got 66 marks, i.e., less than the marks obtained by the respondent, has been included in the ‘C’ list of Grade-I Police Constable and it is not known as to how the same benefit was denied to the respondent.
12. In the case on hand, as the respondent has been promoted from 1993 and all the benefits have been given from 1993 onwards, we are of the considered view that the point of delay, having not been raised before the learned Judge, cannot stand as a detriment, he if is otherwise entitled. The learned Judge, in fact, has found that the respondent was entitled to benefits on par with the said Gopal, P.C.No.5256, who has been given the benefit of inclusion of name in the ‘C’ List and was also recommended for subsequent promotion as Head Constable. Under such circumstances, finding no reason to accept the contention of the contention of the learned Special Government Pleader, this writ appeal stands dismissed. No costs. Consequently, M.P.No.1 of 2008 is closed.
sasi
To:
1. The Secretary to Government
Government of Tamil Nadu
Home Department
Fort St.George, Chennai-9.
2. The Director General of Police
Chennai-4.
3. The Commissioner of Police
Chennai 8