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2011 DIGILAW 835 (MAD)

The Deputy Inspector General of Police v. V. Rani

2011-02-15

N.PAUL VASANTHAKUMAR, R.SUBBIAH

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Judgment :- N. Paul Vasanthakumar, J. 1. These Writ Appeals are filed by the Government against the orders of the learned Single Judges allowing the Writ Petitions directing the Government to give promotion to the Respondents, who were the Writ Petitioners, as they suffered only minor punishments, by following a Judgment of a Division Bench of this Court in the case of Subramanian v. Government of Tamil Nadu, 2008 (5) MLJ 350 . 2. Mr. P. Wilson, learned Additional Advocate General submitted that the said Judgment of the Division Bench was rendered without noticing the Government Order issued in G.O.Ms.No.368, Personnel and Reforms (S) Department dated 18.10.1993 and the subsequent clarification issued by the Government, wherein it is stated that pendency of a charge under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules in respect of police personnel alone is not a bar and if there is punishment, viz., withholding of increment, censure, etc., which are treated as minor punishments, the same should be a bar during the currency of the punishments or for certain period and within the check period of five years, the same will have an effect on promotion/inclusion of name in the panel. 3. The learned Additional Advocate General also submitted that the very same issue was already considered by another Division Bench of this Court in W.P.Nos.364 and 458 of 1999, dated 09.04.2002, wherein the Division Bench held that G.O.Ms.No.368, Personnel and Reforms (S) Department dated 18.10.1993 is clearly applicable while considering the claim of promotion and non-consideration of the said aspect by the State Administrative Tribunal while allowing Original Application in O.A.No.6757 of 1999 by order dated 16.10.1999 is invalid. The same view was taken by a Division Bench of this Court in W.P.No.46447 of 2002, dated 02.02.2006 and set aside the order passed by the Tamil Nadu State Administrative Tribunal in O.A.No.4755 of 1997, dated 11.07.2002. The learned Additional Advocate General also submitted that the said Government Order and the instructions were issued to fill up the yawning gaps in Statutory Rules. 4. The learned Additional Advocate General also submitted that the said Government Order and the instructions were issued to fill up the yawning gaps in Statutory Rules. 4. The learned Additional Advocate General, in support of his contention, cited the following Judgments: Union of India v. K.V. Janakiraman, 1991 (4) SCC 109 ; Union of India and others v. K. Krishnan, AIR 1992 SC 1898 ; State of Tamil Nadu and another v. P. Bose and another, 1993 Supp (3) SCC 491; State of Tamil Nadu v. K.S. Murugesan and others, 1995 (3) SCC 273 ; L. Rajaiah v. Inspector General of Registration and Stamps, Hyderabad and others, AIR 1996 SC 2199 ; and Collector of Thanjavur District and others v. S. Rajagopal and others, 2000 (9) SCC 145 . 5. The learned Additional Advocate General further submitted that in all the above said cases, currency of punishment was treated as a bar and promotion denied during the relevant period was found to be proper and all the above decisions as well as the Government Order, cited supra, were not considered by the Division Bench in the case of Subramanian v. Government of Tamil Nadu, 2008 (5) MLJ 350 , and therefore, these Writ Appeals are to be referred to the Full Bench, since some of the learned Judges of this Court have not interfered in the matter of non-consideration of promotion and some of the learned Judges have allowed the Writ Petitions filed by the persons, who have been denied promotion, following the Judgment of the Division Bench reported in Subramanian v. Government of Tamil Nadu, 2008 (5) MLJ 350 . The learned Additional Advocate General also submitted that uniformity and consistency are core of judicial discipline, and therefore, his request for reference to the Full Bench is fully justified. 6. The respective learned Counsel appearing for the Respondents namely, Mr. M. Ajmal Khan, Mr. A. Thirumurthy, Mr. S. Visvalingam and Mr. Veera. The learned Additional Advocate General also submitted that uniformity and consistency are core of judicial discipline, and therefore, his request for reference to the Full Bench is fully justified. 6. The respective learned Counsel appearing for the Respondents namely, Mr. M. Ajmal Khan, Mr. A. Thirumurthy, Mr. S. Visvalingam and Mr. Veera. Kathiravan, on the other hand, submitted that subsequently, various Division Benches of this Court followed the said Judgment of the Division Bench in Subramanian v. Government of Tamil Nadu, 2008 (5) MLJ 350 and dismissed the Writ Appeals filed by the Government, namely, W.A.(MD) Nos.350 of 2010, dated 10.08.2010; W.A.(MD) No.437 of 2010; dated 03.08.2010 and W.A.Nos.446 to 461 of 2009; dated 10.12.2009 [reported in – The Secretary to Government v. Josuva Jebakumar, 2010 (1) CWC 610 ]. The Learned Counsel also submitted that the Government Orders are contrary to Statutory Rules and the same can be ignored as non est. 7. We have considered the rival submissions. The core issue to be considered is whether a tainted Government Servant, who is punished for any delinquency including violation of Government Servants’ Conduct Rules, though for minor misconduct, can compare himself with a Government Servant, who is having unblemished record of service and demand promotion or inclusion of name in the panel. 8. In the light of the said issue arises for consideration and to settle the issue so as to get a binding precedent to be followed by the learned Single Judges as well as the Division Benches, we are of the considered view that it is just and appropriate to refer these Writ Appeals before he Full Bench. Registry is directed to place these matters before the Hon’ble The Chief Justice for posting these Writ Appeals before the Full Bench for hearing.