Supreme Court - Daily Orders
Principal Secretary To Govt. Home ... vs A Sethupathy on 22 January, 2019
Bench: Ashok Bhushan, K.M. Joseph
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.965 OF 2019
(Arising out of SLP(Civil) No.36384 of 2014)
PRINCIPAL SECRETARY TO GOVT. HOME DEPT., GOVT.
OF TAMIL NADU SECRETARIAT, CHENNAI -09 & ORS. Appellant(s)
VERSUS
A SETHUPATHY Respondent(s)
O R D E R
Leave granted.
This appeal has been filed challenging the judgment of the Division Bench of Madras High Court dated 20.08.2014 by which Writ Appeal (MD) No.935/2014 filed by the appellants has been dismissed. The brief facts of the case necessary to be noted for deciding the appeal are:
The respondent joined as Sub-Inspector of Police on 28.09.1987, he was promoted as Inspector of Police in the year 1998. There had been several disciplinary proceedings against respondent under Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 (hereinafter referred to as the “1955 Rules”). On 01.06.2009 a panel for promotion to the post of Deputy Superintendent of Police was prepared. In which the respondent was not included. The respondent received at least four punishment orders between 19.10.2001 to Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2019.01.25 20.11.2004. By punishment order dated 20.11.2004, the 14:55:53 IST Reason: respondent was punished for reduction in time scale of 1 pay by two stages for two years. The punishment order was to the following effect:
“…….I impose the punishment of “Reduction in time scale of pay by two stages for two years and this shall not operate to postpone future increments” it will take effect on his reinstatement into service.” There has also been punishment subsequent to 2009 which are not necessary to be noted for purposes of this case. W.P.(MD) No.16898 of 2013 was filed by respondent complaining his non-inclusion in panel for promotion for the year 2009-2010. Learned Single Judge referred to P.R. No.40 of 2011 and holding it to be subsequent to the crucial date of promotion for the year 2009-2010, allowed the writ petition to the following effect: “5. I have considered the above submissions. Admittedly, the punishment in P.R. No.40 of 2011 is subsequent to the crucial date of promotion for the year 2009-2010. Therefore, the said punishment cannot be an impediment for his name being included in the panel for the year 2009- 2010. So far as the charge memorandum in P.R. No.3 of 2010 is concerned, the same has been quashed and therefore, that cannot be an impediment for his inclusion in the panel. In my considered opinion, since there is no other legal impediment, he is entitled to be included in the panel for promotion to the post of Deputy Superintendent of Police (Category-I), for the year 2009-2010. Accordingly, he should be promoted as Deputy Superintendent of Police from the date on which his immediate junior was promoted.” Appellants/State aggrieved by the judgment of the learned Single Judge filed a writ appeal which too was dismissed. Learned counsel for the appellants submits 2 that the respondent could not have been included in the panel of promotion from 01.06.2009 as per the relevant criteria for inclusion in promotion since he had received punishments which are sufficient to passover him for promotion.
Learned counsel for the respondent, before the learned Single Judge, has relied on P.R. No.40 of 2011 which admittedly being subsequent to the relevant date, the learned Single Judge did not commit an error in allowing the writ petition. He further submits that respondent has already retired in December 2015, hence he is entitled for all benefits as per the judgment of the High Court.
We have considered the submissions of learned counsel for the parties and perused the record.
The Division Bench while affirming the order of the learned Single Judge has given following reasons in the judgment in paragraphs 6 and 7, which are as follows:
“6. Though it is contended by the appellants that since the respondent had been dealt with in the subsequent departmental enquiry in P.R. No.40 of 2011, he is not eligible to be considered for inclusion of his name in the panel for promotion to the post of Deputy Superintendent of Police (Category-I), we find that the learned Judge had correctly analysed the relevant materials and held that the subsequent initiation of the departmental enquiry has nothing to do with the panel for the promotion to the said post.”
7. It is also seen that the earlier charge memorandum issued as against the respondent, in P.R. No.3 of 2010, dated 20.01.2010, came into existence only after the crucial date and moreover, the same had already been quashed by 3 this Court in W.P.(MD) No.2126 of 2010. Further, the learned Judge found that as there was no other legal impediment, the respondent was entitled to be included in the panel for promotion to the post of Deputy Superintendent of Police (Category-I), for the year 2009-2010 and therefore, he should be promoted as Deputy Superintendent of Police from the date on which his immediate junior was promoted.” Learned counsel for the appellants has relied on P.R. No.20 of 2004 under Rule 3(b) of the 1955 Rules which punishment order was issued on 20.11.2004, as extracted above. The said punishment was reduction in time scale of pay by two stages for two years. Learned counsel for the appellants has relied on relevant instructions dated 20.10.1997, Annexure P/1, issued by the Chief Secretary to the Government and Head of Department containing guidelines with regard to preparation of panel for appointment for promotion/recruitment for transfer in continuation of earlier government orders. Under the head “effect of punishment on inclusion in the panel” following is stated at Clause 2:
“2. Any punishment, other than Censure, imposed on an officer within a period of five years, prior to the crucial date and a punishment of Censure within a period of one year prior to the crucial date should be held against the officer. In such a case the officers name should be passed over.” The punishment order which was issued on 20.11.2004, as per above guidelines, was within a period of five years, prior to the crucial date which was 4 01.06.2009, which was valid ground for non-inclusion of the respondent in the panel for promotion. The respondent was under suspension from 03.05.2002 to 18.05.2009 on account of implication in the criminal case and after acquittal he was treated as on duty. In the writ petition, the appellants although have mentioned about the Charge Memos in P.R. No.03/2010 and P.R. No.40/2011 but in the writ petition he conveniently concealed the punishment order dated 20.11.2004 by which he was reduced in time scale of pay by two stages for two years, which was major punishment in P.R. No.20 of 2004. A perusal of the judgment of Single Judge as well as Division Bench does not disclose that punishment order dated 20.11.2004 was referred to or considered by the High Court. We also noticed that an order was passed on 07.08.2009 by the Superintendent of Police, Dindigul District, Dingigul, filed as Annexure P/16, where recovery of monetary value of punishment orders were issued. The recovery order was also issued with regard to P.R. No.20/2004 vide order dated 20.11.2004. The order further noticed that punishment orders although already have been issued but were not implemented in his pay so far, hence recovery was directed. The respondent in his writ petition, which was filed in the year 2013, has not disclosed about the punishment order dated 20.11.2004 as well as recovery orders which were well within his knowledge. Due to non-
consideration of the aforesaid, learned Single Judge 5 issued direction to include the name of the respondent in the panel for promotion in the year 2009-2010.
We are of the view that punishment order dated 20.11.2004 read with the relevant guidelines for preparation of panel for appointment by promotion makes it clear that the respondent was rightly passover from inclusion of his name in the panel of promotion. The High Court, thus, has committed an error in issuing direction to include the name of respondent for promotion as Deputy Superintendent of Police. In result, the appeal is allowed, impugned judgments of the High Court are set- aside, the writ petition filed by respondent stands dismissed.
...................J. (ASHOK BHUSHAN) ...................J. (K.M. JOSEPH) New Delhi January 22, 2019 6 ITEM NO.21 COURT NO.13 SECTION XII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).36384/2014 (Arising out of impugned final judgment and order dated 20-08-2014 in WA No. 935/2014 passed by the High Court Of Judicature At Madras At Madurai) PRINCIPAL SECRETARY TO GOVT. HOME DEPT., GOVT.
OF TAMIL NADU SECRETARIAT, CHENNAI -09 & ORS. Petitioner(s)
VERSUS
A SETHUPATHY Respondent(s)
Date : 22-01-2019 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE K.M. JOSEPH For Petitioner(s) Mr. M. Yogesh Kanna, AOR Mr. S. Parthasarthi, Adv.
Mr. S. Raja Rajeshwaran, Adv.
For Respondent(s) Mr. Sanjay R. Hegde, Sr. Adv.
Mr. Anil Kumar Mishra-I, AOR Mr. Pranjal Kishore, Adv.
Mr. Ankit Dhawan, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file)
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