S PADMANABHAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE writ petitioner filed the above writ petitions challenging the proceedings of the 2nd respondent/ Director General of Police dated 22.6.2005 in which the 2nd respondent has issued a charge memo against the petitioner and for a direction to the respondents to include the name of the petitioner as Serial No.1 in the panel for the post of Deputy Commissioner of Police/Superintendent of Police Grade II as approved by the 1st respondent in G.O.Ms. No. 747 Home (Pol.1A) Department dated 25.8.2005.

(2.) THE petitioner was appointed as Sub-Inspector of Police in Category II in the year 1971 and later on, promoted as Inspector of Police in Category II in the year 1984. THEn, he came to be further promoted as Deputy Superintendent of Police, Category II, in the year 1996 and thereafter, promoted as Additional Superintendent of Police in the year 2002. THE next avenue of promotion to the petitioner is that of Superintendent of Police. In the list of promotees to the post of Superintendent of Police for the year 2003-2004, the petitioner's name was included as Serial No.2. After the promotion of the person at Serial No.1, eventhough the petitioner became Serial No.1 thereafter, inspite of vacancies, he was not promoted and he filed a writ petition in W.P. No. 20116 of 2004 and an order was passed by this Court on 19.7.2004 directing the respondents to consider the claim of the petitioner. Since, the respondents stated that there are no vacancies, the petitioner was constrained to file another writ petition in W.P. No. 22465 of 2004. However, pending the said writ petition, an order was passed on 29.9.2004 transferring the petitioner from T.S.P. II Battalion, Chennai to the post of Deputy Commandant, T.S.P.VI Battalion, Madurai. As against the same, the petitioner filed W.P. No. 28666 of 2004 and an order of stay was granted. In spite of the order of stay, the petitioner was not permitted to join duty. THE order of stay was subsequently made absolute on 20.11.2004. Ultimately, on 3.2.2005, the petitioner was posted back in the same place as Additional Superintendent of Police on reserve in the Tamil Nadu Special Police II Battalion, Avadi and it was in those circumstances that W.P. No. 28666 of 2004 was dismissed as infructuous. However, the petitioner's claim for promotion for the year 2003 was pending.

(3.) MR. R. Muthukumarasamy, learned senior counsel appearing for the petitioner would submit that eventhough, normally, charge-memo will not be challenged and the scope of judicial review of this Court is limited, he would submit that the factual circumstances of both the charges requires interference by the Court. He would submit that charge No.1 is basically inconsistent for the reason that the petitioner himself admits that he applied for medical leave from the morning of 4.10.2004 till the morning of 6.10.2004 along with medical certificates and the claim for medical leave has not been rejected so far. Therefore, there is no question of relieving the petitioner to Madurai. As far as the second charge is concerned, learned senior counsel would submit that once the petitioner had gone on medical leave on 4.10.2004, there is no question of the petitioner signing the CTC and therefore, the second charge is hit by total non-application of mind. Hence, according to the learned senior counsel, both the charges are perverse on the face of it. It is also the case of the learned senior counsel appearing for the petitioner that the petitioner has been paid salary for the period. Learned senior counsel would also bring to the notice of this Court that eventhough stay of transfer order was granted by this Court, it was in February, 2005 that he was posted back to Chennai and the writ petition itself came to be dismissed as infrcutuous. It is also the admitted case of the petitioner, as stated by the learned senior counsel, that subsequently, the petitioner himself was promoted as temporary Deputy Commissioner of Police, Armed Reserve, Chennai and he was allowed to retire from service on attaining the age of superannuation by communication dated 31.3.2007 without prejudice to the departmental disciplinary proceedings/writ petitions pending against him. Therefore, according to the learned senior counsel, on the facts and circumstances of the case, nothing survives in the charges framed against the petitioner. Since, the charge itself is in respect of transfer to Madurai and also availing of leave by the petitioner from 4.10.2004 till 6.10.2004 and the same has not been rejected and the petitioner has been allowed to retire from service from 31.1.2007, absolutely nothing survives for consideration on the facts and circumstances of the charges stated above and therefore, according to the learned senior counsel, it is a fit case where the Court should interfere. He would also submit that since the petitioner was allowed to retire on 31.1.2007 and as promotion to the next post namely, Deputy Commissioner of Police, was already given on temporary basis and he was also paid salary, there is no question of including the petitioner in the panel of promotion to the post of Deputy Commissioner of Police/Superintendent of Police Grade II.