Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 2112 (MAD)

Brindavathi v. Director General of Police

2012-04-27

K.N.BASHA

body2012
Judgment :- 1. The prayer in the writ petition is to direct the respondents to consider the claim of the petitioner for promotion to the post of Inspector of Police for the year 2004 and promote her as Inspector of Police with all consequential service and monetary benefits on par with the petitioner's juniors. 2. The case of the petitioner is that she was appointed as Police Constable Grade-I on 11.02.1981 and thereafter, promoted as Head Constable in the year 1990 and further, posted as Woman Sub-Inspector of Police as per the proceedings of the Superintendent of Police, Dharmapuri dated 16.07.1996. 2.1. As the petitioner was due for promotion as Inspector of Police, the name of the petitioner was not included on the crucial date of drawal of the panel, i.e., 01.07.2004, mainly on the ground of contemplation of a charge to be levelled against the petitioner under rule 3[b] of the Tamil Nadu Police Subordinate Services [D&A] Rules. The date of consideration for approval of the panel is 27.09.2004 and the petitioner's junior, viz., one Chinnaponnu, was promoted on 14.10.2004. Till such time, no charge memo was served on the petitioner and as such, the petitioner is entitled to be included in the promotion panel drawn for the post of Woman Inspector of Police for the year 2004, i.e., from 27.09.2004. Under the said circumstances, the petitioner has been constrained to prefer this writ petition with the above said prayer. 3. Mr.K.Venkataramani, learned senior counsel appearing for the petitioner would mainly contend that in spite of the fact that no charge memo was served against the petitioner, she has been denied her promotion to the post of Woman Inspector of Police merely on the ground of contemplation of a charge. It is contended that on the crucial date of drawal of the promotion panel to the said post, viz., on 01.07.2004, admittedly no charge memo was served on her and even on the date of consideration of the said panel, i.e., 27.09.2004 and on the date of promoting the petitioner's junior, i.e., on 01.10.2004, the petitioner was not at all served with any charge memo. It is contended that the petitioner is entitled to be included in the promotion panel for promotion to the post of Woman Inspector of Police and she cannot be denied of such benefit merely on the ground of contemplation of charge to be issued against her. 3.1. The learned senior counsel appearing for the petitioner pointed out that as per G.O.Ms.No.368 P&AR Department, dated 18.10.1993, in cases of pending enquries including vigilance enquiries and in cases where no specific charges were framed, promotions and appointments shall be considered on the basis of the performance of the officers coming under the Zone of Selection onn the date of consideration for promotion. It is also pointed out that as per the said Government order "the specific charges referred as per rule 17[b] of the Tamil Nadu Civil Services [Classification, Control and Appeal] Rules, mere calling for the explanation of the Government servant under rule 17[a], not be treated as a bar for promotion on that score alone". Learned senior counsel would also submit that the subsequently, the charge memo was issued and on enquiry, the petitioner was exonerated for the said charge as per the order dated 09.04.2010 passed by the Deputy Inspector General of Police, Salem Range, Salem. Therefore, it is contended that the petitioner is entitled to be included in the promotion panel for promotion to the post of Woman Inspector of Police for the year 2004 and accordingly, she has to be promoted to the said post from 14.10.2004, the date on which her junior, one Chinnaponnu was promoted. 4. Per contra, Ms.V.M.Velumani, learned Special Government Pleader appearing for the respondents would submit that the petitioner has not preferred any representation till date. It is submitted that a detailed counter is filed by the 2nd respondent in this matter. It is contended that on 02.03.2004, the respondents have received instructions from the Government to initiate the disciplinary proceedings against the petitioner and the crucial date of the drawal of the panel was 01.07.2004. It is submitted that the said panel was considered and approved on 27.09.2004. It is contended that in view of the specific direction given by the Government as early as on 02.03.2004, i.e., before the drawal of the panel on 01.07.2004, the petitioner's name was not included in the promotion panel. 5. It is submitted that the said panel was considered and approved on 27.09.2004. It is contended that in view of the specific direction given by the Government as early as on 02.03.2004, i.e., before the drawal of the panel on 01.07.2004, the petitioner's name was not included in the promotion panel. 5. This court carefully considered the submissions made on either side and also perused the materials available on record including the affidavit filed by the petitioner and the counter filed by the 2nd respondent. 6. The undisputed fact remains that the petitioner has reached the position of zone of consideration for promotion to the post of Woman Inspector of Police on the crucial date of drawal of panel, i.e., 01.07.2004. It is pertinent to note that in spite of the said factor, even as per the admitted version of the respondents, the name of the petitioner was not included in the promotion panel on the ground of contemplation of a charge to be framed against the petitioner. Learned Special Government Pleader made a feeble attempt to contend that even before the drawal of the panel on 01.07.2004, the respondents have received instructions from the Government to initiate disciplinary proceedings on 02.03.2004 and as such, the respondents have rightly excluded the petitioner's name in the panel. I am unable to countenance such contention of learned Special Government Pleader for the simple reason that even as per the submission of the learned Special Government Pleader, it was only on the ground of contemplation of framing a charge against the petitioner on the crucial date of drawal of the panel on 01.07.2004, the petitioner's name was not included. 7. At this juncture, it is relevant to refer the settled position of law as per the decision of a Division Bench of this court in WA.No.115/2008 [E.PITACHAIMARI Vs. THE SPECIAL COMMISSIONER AND TRANSPORT COMMISSIONER] dated 10.04.2008. The Division Bench, in the above judgment has held as follows:- "3. The stand of the Department in the writ petition was to the effect that on the crucial date for consideration, i.e., on 15.03.2007, a charge memo under Rule 17[b] of the Tamil Nadu Civil Services [Discipline and Appeal] Rules was pending. So far as the above aspect is concerned, we have gone through the materials on record and also the file, which was produced by the Special Government Pleader. So far as the above aspect is concerned, we have gone through the materials on record and also the file, which was produced by the Special Government Pleader. It appears that even though a signed document is available in the file, which was apparently signed on 07.09.2006 by the previous Transport Commissioner, the fact remains that the charge memo was issued under the signature of the subsequent Transport Commissioner, with the date 10.07.2007 and it was actually served on 28.07.2007 on the petitioner. 4. In AIR 2007 SC Pg.1706 [Coal India Limited and Others V. Saroj Kumar Mishra], the Supreme Court, after referring to several decisions, has observed as here under:- "A Departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued." 5. In the present case, the earlier charge memo, which had been signed had not been issued and similarly, the present charge memo, even though signed on 10.07.2007, was actually issued, so far as the appellant is concerned, only on 28.07.2007. Therefore, it cannot be said that on the date when the panel was prepared, i.e., on 15.03.2007, any charge memo was pending." Ultimately, the Division Bench has allowed the writ appeal and held that the appellant in the said matter shall be deemed to have been promoted with effect from 28.06.2007 and shall be entitled to all consequential benefits including salary. 8. It is also relevant to refer the decision of the Hon'ble Apex Court in DELHI JAL BOARD VS. MAHINDER SINGH reported in 2000 [7] SCC 210, wherein the Hon'ble Apex Court held in paragraph 5 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. 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 his favour and by the time the sealed cover was opened to give effect to it, another Departmental enquiry was stated 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..................." The principles laid down by the Hon'ble Apex court and the Division Bench of this court are squarely applicable to the facts of the instant case as in this case also, the petitioner has been denied the benefit of inclusion of her name in the promotion panel for the year 2004 merely on the ground of contemplation of a charge memo to be issued against her. It is relevant to note that there is absolutely no specific charge was pending against the petitioner on the crucial date of the drawal of the promotion panel and on the basis of the charge memo issued subsequently, an enquiry was conducted during the pendency of this writ petition and the petitioner has been exonerated from the charge as per the order dated 09.04.2010 passed by the Deputy Inspector General of Police, Salem Range, Salem. Therefore, this court is of the considered view that there is absolutely no legal impediment for including the petitioner's name in the promotion panel drawn on 01.07.2004; considered and approved on 27.09.2004. It is also seen that the petitioner's junior one Chinnaponnu was promoted on 14.10.2004. 9. Therefore, this court is of the considered view that there is absolutely no legal impediment for including the petitioner's name in the promotion panel drawn on 01.07.2004; considered and approved on 27.09.2004. It is also seen that the petitioner's junior one Chinnaponnu was promoted on 14.10.2004. 9. In view of the aforesaid reasons, this court is of the view that the petitioner is deemed to have been promoted with effect from 14.10.2004 the date on which the petitioner's junior, viz., one Chinnaponnu, was promoted and the petitioner shall be given the seniority above her junior and she is also entitled to all consequential monetary and service benefits. Accordingly, the respondents are directed to place the petitioner in the seniority above her junior, viz., Chinnaponnu, with effect from 14.10.2004 and grant her all the consequential monetary and service benefits. It is made clear that the said exercise shall be completed by the respondents within a period of twelve weeks from the date of receipt of a copy of this order. 10. With the above direction, the writ petition is disposed of. No costs.