Madras High Court
Tmt.D. Lalithamalini vs The State Of Tamil Nadu Rep By on 5 March, 2013
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:5-03-2013
CORAM
THE HON'BLE MR.JUSTICE VINOD K. SHARMA
WRIT PETITION No.15062 of 2009
Tmt.D. Lalithamalini .. Petitioner
Vs
1. The State of Tamil Nadu rep by
its Secretary to Government,
Home Department,
Fort St. George, Chennai-9
2. The Director General of Police,
Kamarajar Salai, Chennai-4
3. The Superintendent of Police,
District Police Office,
Cuddalore .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the records of the proceedings issued by the first respondent in G.O.(D) No.1022 Home (Police-3) Department Dated 10.8.2008 and quash the same with the consequential direction directing the respondents to confer all monetary benefits and revision of pension, by promoting the petitioner's husband as Inspector of Police notionally, in the light of G.O.Ms.No.1056 Home (Police-3) Department dated 1.11.2006.
For petitioner : Mr.V. Ravi Kuamr
For respondents : Mr.R. Ravichandran
AGP
ORDER
The petitioner has approached this court with a prayer for issuance of a writ in the nature of Certiorari, to quash the order of the first respondent, G.O.(D) No.1022 Home (Police-3) Department Dated 10.8.2008 with consequential relief of writ in the nature of mandamus to promote the petitioner's husband as Inspector of Police notionally in the light of G.O.Ms.No.1056 Home (Police-3) Department dated 1.11.2006 with all consequential benefits.
2. The petitioner is a widow of late Thiru.G. Devairakkam, who retired as Sub Inspector of Police. The husband of the petitioner was enlisted as a Constable in the Armed Reserve on 10.11.1971 and promoted as a Lance Naik in the year 1973. He was thereafter promoted as Sub Inspector of Police in the year 1997. The husband of the petitioner rendered 35 years of unblemished service and retired from service, on attaining the age of superannuation, on 30.11.2006.
3. The husband of the petitioner, based on his seniority, was recommended for inclusion in the 'C' list of Sub Inspector of Police (Category I) fit for promotion as Inspector of Police, for the year 2004-2005, but his name was not included in the promotion list in view of the bar under Rule 3(c) and (d)(ii) of the Special Rules of Tamil Nadu Police Subordinate Service, laying down that a person, who crosses the age of 55 years, was not considered for further promotion. That subsequently, the State Government took policy decision dated 30.8.2006 to delete the portion of Rule 3(c) and (d) (ii) laying down the maximum age for further promotion.
4. The case of the petitioner is that her husband retired from service on 30.11.2006 i.e., after the enforcement of amended rule on 1.11.2006 therefore, her husband had a right to be promoted to the post of Inspector of Police and that promotion was wrongly denied to him. Therefore, the husband of the petitioner made number of representations seeking promotion to the post of Inspector notionally from 1.11.2006 and having failed to get response from the respondents filed a Writ Petition No.6533 of 2008, for issuance of a Writ in the nature of mandamus to consider the representation of the petitioner for promotion as Inspector of Police notionally with effect from 1.11.2006.
5. The writ petition was disposed of by this Court, by directing the respondents, to consider the representation filed by the petitioner within a period of eight weeks from the date of receipt of certified copy of the order.
6. It is in pursuance of the directions of this court, the impugned order has been passed rejecting the claim of the husband of the petitioner for promotion by stating that his name could not be considered as the husband of petitioner had retired from service on 30.11.2006.
7. The learned counsel for the petitioner vehemently contends, that the impugned order cannot be sustained in law, as it was not open to the respondent to reject the claim of the husband of the petitioner as the only reason for not including him in the promotion list was that he was overaged at that time, however, after amendment of rules he became entitled to promotion as Inspector.
8. The impugned order, being arbitrary, is hit by Article 14 of Constitution of India.
9. In support of the contention that the petitioner is entitled to be promoted notionally with effect from 1.11.2006, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Sudha Shrivastava (Smt) vs Comptroller and Auditor General of India (1996) 1 SCC 63, wherein, the Hon'ble Supreme Court was pleased to lay down as under:
11. The claim of the appellant was rejected by the Tribunal primarily on the ground that the right to promotion was a personal right and the heirs of the deceased have no right to make any claim in regard thereto. The Tribunal fell in error inasmuch as the process for promotion to the post of Accountant General (Grade II) regarding late S.S. Shrivastava had already been undertaken and the sealed cover procedure followed. Whatever the rights the deceased had, as a result of this sealed cover the procedure having been followed, stood established as on that date. Along with the right to work in the higher post, if he was to be promoted, he would have also got a right to salary in the higher scale. The effect of the acquittal of the appellant's husband must be regarded as if he had been wrongly convicted. He, therefore, would have had a right to have been placed in the higher scale of pay, if he had been selected for promotion and this is a right which would devolve on the legal heirs, if during the pendency of the proceedings, the said employee expired.
...
13. Just as a legal representative of the workman could claim back wages or any other monetary relief which would have ensued to the deceased workman, similarly, in the present case, the right to get the benefits, which would have been due to the appellant's husband as a result of the sealed cover procedure, would devolve on the appellant. The sealed cover will have to be opened and if it transpires that he was fit for promotion, then he is to be deemed to have been promoted to the post of Accountant General (Grade II) in the pay scale of Rs.2250-2500 and, thereafter, he is also to be considered for promotion to the post of Accountant General (Grade i) in the higher scale of Rs.2500-2750. It is not in dispute that this procedure would have had to be followed if the husband of the appellant had been alive when the High Court delivered the judgment, setting aside the conviction.
10. On consideration, I find no merit in the writ petition. It is not disputed, that on the date when the case of the petitioner's husband was considered for promotion under the Rules governing the service condition, he was not eligible and was rightly not promoted. The rules were thereafter amended only on 1.11.2006, which could entitle the husband of petitioner for consideration against post which were to fall vacant after amended rules came to force as the amendment did not have retrospective effect but only prospective.
11. It is not the case of the petitioner that between 1.11.2006 and 30.11.2006 any further promotion was made, wherein, her husband was not considered. It is also not disputed that no promotions were made between 1.11.2006 and 30.11.2006 that is the date of retirement of her husband.
12. Therefore, no error can be found with the impugned order in rejecting the representation filed by the petitioner. The judgment of the Hon'ble Supreme Court, on which, reliance is placed by the learned counsel for the petitioner, can have no application to the facts of this case. The Hon'ble Supreme Court was dealing with right of legal representations under the sealed cover procedure. The Hon'ble Supreme Court only held that when an employee was held entitled to be promoted, by following sealed cover procedure, then the heirs of the deceased employee were entitled to the benefit of promotion.
13. Whereas, in this case admittedly the order rejecting the promotion to the husband of the petitioner did not suffer from any illegality having been passed in consonance with Rules, then in force.
14. In absence of amended rule being retrospective it cannot be said any legal right of the petitioner was infringed to invoke the writ jurisdiction of this court.
15. No merit, Dismissed.
Consequently, connected MP is closed.
sr To
1. The State of Tamil Nadu Rep by its Secretary to Government, Home Department, Fort St. George, Chennai-9
2. The Director General of Police, Kamarajar Salai, Chennai-4
3. The Superintendent of Police, District Police Office Cuddalore