Madras High Court
R.Perumalswamy vs The Principal Secretary To Government on 29 April, 2024
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
W.P.No.18231 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.03.2024
Pronounced on : 29.04.2024
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
W.P.No.18231 of 2011
R.Perumalswamy ...Petitioner
Vs.
1.The Principal Secretary to Government,
Home (Police 1A) Department,
Fort St.George, Chennai – 9.
2.The Director General of Police,
Mylapore, Chennai – 4. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, calling for the records of the 1st
respondent in connection with the impugned order passed by him in letter
No.D.No.1227/Home(Pol.1A) Department dated 10.12.2010 and quash the
same and further direct the respondents to consider the claim of the petitioner
for promotion as Superintendent of Police notionally, in the panel of the year
2008-09 published in GO.Ms.No.497 Home (Pol.1A) Department dated
24.06.2009 and grant him all consequential service and monetary benefits.
https://www.mhc.tn.gov.in/judis
Page 1 of 10
W.P.No.18231 of 2011
For Petitioner : Mr.K.Venkatramani, Senior Counsel
for Mr.M.Muthappan
For Respondents : Mr.Haja Nazirudeen, AAG
asst by Mr.D.Gopal, Government Advocate
ORDER
This Writ Petition is filed calling for the records of the 1st respondent in connection with the impugned order passed by him in letter No.D.No.1227/Home(Pol.1A) Department dated 10.12.2010 and quash the same and further direct the respondents to consider the claim of the petitioner for promotion as Superintendent of Police notionally, in the panel of the year 2008-09 published in GO.Ms.No.497 Home (Pol.1A) Department dated 24.06.2009 and grant him all consequential service and monetary benefits.
2.The case of the petitioner is that, petitioner entered into the Service in Police Department in the year 1973 as Sub-Inspector of Police. He was promoted as Inspector of Police in the year 1983 and subsequently promoted as Deputy Superintendent of Police, Category -I in the year 1998 and as Additional Superintendent of Police on 07.07.2006. He retired on attaining the age of superannuation on 31.03.2009. Petitioner is the recipient of Chief Minister’s medal for meritorious service in the year 1992, Governor’s medal for vigilance in the year 2006 and President’s Police Medal for meritorious service https://www.mhc.tn.gov.in/judis Page 2 of 10 W.P.No.18231 of 2011 in the year 2007. Petitioner has attained seniority and merit for consideration of his claim for the promotion as Superintendent of Police ( non- cadre) for the panel year 2008-09. The crucial date for the preparation of the panel was 01.06.2008. The estimated vacancy in the post of Superintendent of Police ( non-cadre) for the year 2008-09 has been worked out as 15. The Director General of Police has sent a communication to the 1st respondent on 13.06.2008, 25.10.2008 and 18.12.2008 for approval of the estimated vacancy. In a proposal consisting of the names of 30 eligible Additional Superintendent of Police, Cateogy -I, petitioner’s name was recommended in Sl.No.12 out of 30 names.
2.1. A batch of Writ Petitions including W.P.No.35176 of 2008 was filed before this Court, seeking direction to promote the petitioners therein as Additional Superintendent of Police on par with their seniority fixed earlier in pursuance of G.O.Ms.No.1252 Home ( Pol.II) Dept.dated 29.04.2004. A Writ Petition was filed challenging the order of the Government granting relaxation in favour of some of the police personnel who were involved in special task force operation and who have been granted accelarated promotion as a one time measure. This Court granted interim injunction in M.P.No.03 of 2008 in W.P.No.35716 of 2007 restraining the Government from giving promotion to https://www.mhc.tn.gov.in/judis Page 3 of 10 W.P.No.18231 of 2011 the juniors in the cadre of Additional Superintendent of Police to the post of Superintendent of Police, pending disposal of the Writ Petition.
2.2.On 02.02.2009 and on 02.03.2009, a list was sent to the Government i.e., panel for promotion to the post of Superintendent of Police, in which petitioner’s name was included in Sl.No.12. The interim injunction petition in MP.No.3 of 2008 in W.P.No.35716 of 2007 was dismissed by this Court on 20.04.2009. However, petitioner had retired on attaining the age of superannuation on 31.03.2009.
3.It is the submission of the learned counsel for the petitioner that, crucial date for the preparation of the panel for the post of Superintendent of Police was 01.06.2008. Panel was prepared and sent to the Government on 13.06.2008, 25.10.2008 and 18.12.2008. However, Government has not taken immediate steps for promoting the eligible candidates. The interim injunction order in W.P.No.35716 of 2007 was granted only on 12.11.2008. Had the Government considered the case of persons who are due to retire soon, petitioner would have been promoted as Superintendent of Police ( Non Cadre). Due to the delayed action and insensitiveness shown by the Government, petitioner had lost his promotion. Thus, he prayed for promoting him as https://www.mhc.tn.gov.in/judis Page 4 of 10 W.P.No.18231 of 2011 Superintendent of Police notionally with attendant benefit.
4.In response, the learned Government Advocate submitted that, due to the stay granted in M.P.No.03 of 2008 in W.P.No.35716 of 2007, the panel could not be approved. Only after the stay petition was dismissed on 20.04.2009, panel was approved on 24.06.2009. Meanwhile, petitioner got retired and therefore, he could not be promoted as Superintendent of Police ( Non Cadre).
4.1.It is his further submission that the estimated vacancy in the post of Superintendent of police (Non cadre) for appointment by promotion for the year 2008-09 was 8. The Government of India have determined the vacancies for recruitment by promotion through the Tamil cadre IPS during 2008 as 10. As such, 10 Non Cadre Superintendent of Police would be appointed to Indian Police Service against the vacancies determined for the 2008 leaving 10 vacancies in Tamil Nadu Police Service in the rank of Superintendent of Police. Therefore, 10 additional Superintendent of Police have to be promoted as Superintendent of Police, in the existing vacancies and thus estimated vacancy in the post of Superintendent of Police (Non-cadre) for the year 2008-09 was arrived, if approved by the Government, as 17. By a letter in Letter No.3(D) https://www.mhc.tn.gov.in/judis Page 5 of 10 W.P.No.18231 of 2011 No.13, Home (Police.1A) Department, dated 02.03.2009, the Government approved the estimate vacancies for the post of temporary Superintendents of Police (Non-cadre) by appointment through promotion for the year 2008-09 as 15, subject to the condition that the 10 vacancies in the cadre post should be filled up on or before 31.05.2009. The panel was approved and a Government Order was passed in G.O.Ms.No.497, Home (Pol.1A) Department, dated 24.06.2009. On 31.03.2009, there were no vacancies available for promoting the petitioner as Superintendent of Police (Non-cadre), even assuming that panel was approved prior to 31.03.2009. Only 5 persons topping the seniority were temporarily promoted through G.O.Ms.No.357, Home Department, dated 28.04.2009, in view of the exigency i.e., due to the ensuing election. Even petitioner immediate seniors who were to retire between March 2009 to October 2009 were not considered for promotion. The reason is there were no vacancies. Thus, learned counsel for the respondent submitted that petitioner is not entitled for promotion.
5.In reply, learned counsel for the petitioner submitted that, in the letter addressed by the then Director General of Police in Rc.No.050671/GB I(2)/2010, dated 22.07.2010, it was clearly stated that the estimated vacancies for the year 2008-09 was 15. During the meeting held on 02.02.2009, the police https://www.mhc.tn.gov.in/judis Page 6 of 10 W.P.No.18231 of 2011 Establishment Board considered the names of the eligible Additional Superintendents of Police (Cat.1) and their suitability for inclusion in the panel. Accordingly, petitioner's name was also included in the panel of 36 in Sl.No.12. The Government approved the estimated vacancy in letter dated (3D) No.13, dated 02.03.2009 as 15. In G.O.Ms.No.497, Home (pol, 1A) Department, dated 24.06.2009 approved the temporary panel of ADSP fit for promotion as Superintendent of Police (Non-Cadre) for the year 2008-09 as 14. Thus, he submitted that, had the Government acted with speed, petitioner would have been promoted as Superintendent of Police (Non-cadre) before the date of his retirement. The inaction on the part of the Government is the cause of his denial of promotion.
6.Considered the rival submissions and perused the records.
7.From the records produced and submissions made by the learned counsel for the parties, it is seen that petitioner was not promoted as Superintendent of Police (Non-cadre), for the reason that, before the panel was approved and Government Order was issued in GO.Ms.No.497 Home (Pol.1A) Department dated 24.06.2009, he retired from service on attaining the age of superannuation on 31.03.2009.
https://www.mhc.tn.gov.in/judis Page 7 of 10 W.P.No.18231 of 2011 7.1.It is also not in dispute that in a Writ Petition in W.P.No.35716 of 2007, where the petitioner is not a party, order of stay restraining the Government from giving promotion to the juniors of the petitioners therein, was passed in M.P.No.3 of 2008. In view of the pendency of this Writ Petition and grant of stay, the Government was not in a position to process the promotion of Additional Superintendent of Police to post o Superintendent of Police (Non- cadre). The letter of the then Director General of Police in Rc.No.64302/GB1(2)/2008, dated 13.06.2008 shows that, the estimated vacancy for the post of Superintendent of Police (Non-cadre) for appointment by promotion for the year 2008-09 was arrived at 8. Only on the basis of this 8 vacancies, the top 5 in the list were promoted due to the ensuing election by invoking Rule 39(a)(i) General Rules under the Tamil Nadu State and Subordinate Service Rules. The Government of India determined the vacancies for Indian Police Service by promotion through Tamil Nadu cadre IPS in the year 2008 as 10. If those 10 IPS vacancies are filled up, there will be 10 vacancies in the cadre of Superintendent of Police (Non-cadre). Thus, the total vacancies for 2008-09 was arrived at 17, subject to approval of the Government. Unfortunately for the petitioner, due to litigation, the list got approved only on 26.04.2009. As on 13.06.2008, only 8 vacancies were https://www.mhc.tn.gov.in/judis Page 8 of 10 W.P.No.18231 of 2011 available. Out of these vacancies, 5 were filled up through proceedings in G.O.Ms.No.357, Home Department, dated 28.04.2009. That promotion was also temporary. In the panel, petitioner's name was found in Sl.No.12. From the records produced, it is clear that there was no vacancy available for promoting the petitioner as Superintendent of Police (Non-cadre) till the date of his retirement on 31.03.2009. Only if there is a vacancy, petitioner can make a legal claim for the promotion or if any one of his junior is promoted ahead of him, petitioner can seek the relief. There was no vacancy available, therefore, petitioner cannot claim that he should be promoted a Superintendent of Police (Non-cadre).
8.This Court finds no merits in the claim of the petitioner. Therefore, the impugned order passed by the 1st respondent in letter No.D.No.1227/Home(Pol.1A) Department dated 10.12.2010 cannot be quashed. Accordingly, this Writ Petition is dismissed. No costs.
29.04.2024 Index:Yes/No Speaking/Non speaking order gd https://www.mhc.tn.gov.in/judis Page 9 of 10 W.P.No.18231 of 2011 G.CHANDRASEKHARAN.J., gd To
1.The Union Territory of Pondicherry, Represented by its Chief Secretary, Government of Puducherry, Puducherry.
2.The Chairman, Pondicherry Institute of Post Matric Technical Education (PIPMATE), Puducherry.
3.The Vice Chairman, (Secretary to Government (Education), Pondicherry Institute of Post Matric Technical Education (PIPMATE), Puducherry.
4.The Member Secretary, Pondicherry Institute of Post Matric Technical Education (PIPMATE), Puducherry.
Pre-Delivery Order in W.P.No.18231 of 2011 29.04.2024 https://www.mhc.tn.gov.in/judis Page 10 of 10