Government of Tamil Nadu v. K.Kamalanathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 6.4.2009CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANW.A.No.839 of 20081. The Government of Tamil Nadu rep. by Secretary to Government Home Department Fort St.George, Chennai-9.2. The Director General of Police Chennai-4.3. The Commissioner of Police Chennai-8. ..AppellantsVsK.Kamalanathan ..RespondentPRAYER: Against the order of the learned Single Judge dated 13.2.2007made in W.P.No.14722 of 2006 this petition filed under Article 226 ofthe Constitution of India to direct the respondents to include hisname in the "C" List drawn for Junior Promotion in the year 1980 andto place his name in the appropriate seniority list also direct therespondents to award him all attendant benefits including his duepromotion as Head Constable and other monetary benefits.For Appellants:Mr.R.ThirugnanamSpecial Government PleaderFor Respondent :M.S.SoundararajanJUDGMENT(Delivered by P.JYOTHIMANI,J.)The respondents in the writ petition have filed the present writappeal against the order of the learned Judge dated 13.2.2007, bywhich the learned Judge has declared that the respondentherein/petitioner is entitled to the relief claimed, namely toinclude his name in the 'C' list drawn for Junior Promotion in theyear 1980, while ordering that the respondent will, however, be https://hcservices.ecourts.gov.in/hcservices/ entitled to all attendant benefits only from the date of joining thepromotional post and not from the date on which he should have beenconsidered for promotion for the said post.2. The respondent has claimed that he should have beenconsidered for promotion in the panel of the year 1980, whereas it isadmitted that the name of the respondent has been included in theyear 1993 and all the benefits have been given from 1993 onwards.The short point that was to be decided in the writ petition was aboutthe benefits to be conferred on the petitioner from 1980 to 1993.3. The respondent was enlisted as Grade-II Police Constable on13.12.1973 in Madras City Police. He was, originally, havingS.S.L.C. qualification and subsequently, in 1988, he passed B.A.Degree. He was working in Armed Reserve and transferred to CrimeBranch, CID. It was stated that in October, 1980, tests wereconducted in Crime Branch CID for Grade-II Police Constable to awardJunior Promotion of Grade-I Police Constables, as per the officeorders dated 3.10.1980 and 15.10.1980. The respondent had taken partin the said test. A list was drawn by such of those Grade-I PoliceConstables who passed the tests and the same was sent to therespective parent departments with a direction to include their namesin the 'C' list. It is the case of the respondent that the names ofall the Grade-II Police Constables, whose parent department was otherthan Madras City, were included. Even though the respondent's namewas placed in serial No.41, his name was not included in the 'C' listand he was not given his due promotion unlike others, who have takenpart in the test conducted in Crime Branch, CID, Madras. When therespondent filed Original Application in O.A.No.4659 of 1993, whichwas transferred to this Court as W.P.No.14722 of 2006, he was workingin Crime Branch, CID, Chennai.4. The respondent has also brought out a similar instance of oneGopal, P.C.No.5256, who has taken part in the test at Crime Branch,CID along with the petitioner and was promoted by the order of theChief Officer, discriminating the Grade-II Police Constables. 5. The respondent also brought another instance of oneSubramani, P.C.No.410, who was in serial No.56, who also filed anOriginal Application and pursuant to the orders therein, was promotedas Head Constable and got all benefits.6. In the reply filed by the appellants, the appellants arestated to have informed this Court that the name of said Gopal,P.C.No.5256, has been wrongly included in the Junior Promotion listof the year 1980 and steps would be taken to cancel the saidinclusion. 7. However, the learned Judge found a communication from theDirector General of Police in July, 2003, wherein the Director https://hcservices.ecourts.gov.in/hcservices/ General has not only promoted the said Gopal as Grade-I PoliceConstable, but has also directed to promote him as Head Constablewith effect from 10.3.1988. The order of the Director General ofPolice, which has been extracted by the learned Judge, is as follows:"The Commissioner of Police, Chennai City is requestedto implement the Chief Office order issued in MemoC.No.60497/NGB 3(3)/86, dated 22.10.1986. Thepetitioner, HC 5256 Gopal, Chennai City may be upgradedas Gr I PC with effect from 13.03.81 and as HC witheffect from 10.03.88 on par with his immediate junior PC6052, Umapathy (Sl.No.8(B) of Gr I 'C' list) as thefurther action on show cause notice issued by theGovernment was dropped as TAT order."8. The learned Judge, taking note of the fact that no stepshave been taken to cancel the inclusion of the name of Gopal,P.C.No.5256, in the Junior Promotion List of 1980, but, on the otherhand, he was ordered to be promoted as Head Constable with effectfrom 10.3.1988, has ordered that the said benefits should also begiven to the respondent herein. It is also relevant to point outthat, in fact, before the learned Judge, the learned AdditionalGovernment Pleader has taken a stand that the respondent should alsobe considered based on the consideration of Gopal, P.C.No.5256.9. It is not in dispute, as submitted by the learned SpecialGovernment Pleader, that Gopal, P.C.No.5256, has got only 66 marks inthe test, namely, less than the marks obtained by the respondentherein, i.e., 67.5 marks. His only contention is that the respondenthas secured only 67.5 marks, while the cut-off mark required is 75and therefore, the respondent is not entitled to claim a direction toinclude his name in 'C' list drawn for Junior Promotion in the year1980, as a matter of right. It is also his further contention thatwhile the panel was drawn in the year 1980, the respondent has chosento approach the Tribunal only in the year 1993 and as such, there issubstantial delay and that should be also taken against therespondent.10. It is the submission of the learned counsel for therespondent that the point of delay has not been raised by theappellants, at any point of time, before the learned Judge. In thisregard, he places reliance on the decision of the Supreme Court inTransmission Corporation of A.P. Ltd. v. P.Surya Bhagavan, AIR 2003SC 2182, wherein it was held by the Supreme Court that when a pointwas not raised before the High Court, the same cannot be permitted tobe raised for the first time before the Supreme Court. The relevantportion of the said judgment reads as follows:"10. Question as to whether the respondent was overagedfor entry into service was neither raised in the written https://hcservices.ecourts.gov.in/hcservices/ statement nor was it argued before the High Court.Under the circumstances the appellant cannot bepermitted to raise this point for the first time in thisCourt. The second point regarding the delay in filingthe petition though was raised in the written statement,but, it seems the same was not pressed before the Benchat the time of arguments. It has not been stated in thegrounds of appeal that this point was raised and arguedbefore the Bench during the course of arguments and theBench had failed to notice the same. In view of this wedecline to go into this question as well."11. It is not in dispute that the name of said Gopal,P.C.No.5256, who got 66 marks, i.e., less than the marks obtained bythe respondent, has been included in the 'C' list of Grade-I PoliceConstable and it is not known as to how the same benefit was deniedto the respondent.12. In the case on hand, as the respondent has been promotedfrom 1993 and all the benefits have been given from 1993 onwards, weare of the considered view that the point of delay, having not beenraised before the learned Judge, cannot stand as a detriment, he ifis otherwise entitled. The learned Judge, in fact, has found thatthe respondent was entitled to benefits on par with the said Gopal,P.C.No.5256, who has been given the benefit of inclusion of name inthe 'C' List and was also recommended for subsequent promotion asHead Constable. Under such circumstances, finding no reason toaccept the contention of the contention of the learned SpecialGovernment Pleader, this writ appeal stands dismissed. No costs.Consequently, M.P.No.1 of 2008 is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo1. The Secretary to Government Government of Tamil Nadu Home Department Fort St.George, Chennai-9.2. The Director General of Police Chennai-4. https://hcservices.ecourts.gov.in/hcservices/

3. The Commissioner of Police Chennai-8.+ 1 c.c. to The Government Pleader. S.R.No.12865.W.A.No.839 of 2008SGL (CO)GSK 18.04.2009.