Mr.V.Rajasekaran, learned Special Government Pleader, takes notice on behalf of the respondent. By mutual consent of both sides, the Writ Petition is taken up for final disposal.
2. The petitioner has come forward with this petition seeking for the relief of quashing the memorandum of the respondent in Rc. No.98745/NGB.I(1)/2008 dated 02.02.2009 and consequently directing the respondent to grant promotion to the petitioner as Inspector of Police.
3. Mr.R.Rajsekaran, learned counsel for the petitioner submitted that the petitioner was working as Sub Inspector of Police and criminal proceeding was initiated against him on the allegation of custodial death as early as in the year 1999 and simultaneously departmental proceedings was also initiated. It is submitted that the petitioner filed O.A.No.7976 of 2001 before the Tamil Nadu Administrative Tribunal and the Tribunal by order dated 19.12.2001 directed to defer the departmental enquiry till the disposal of the Criminal case. The learned counsel for the petitioner would further submit that thereafter in the year 2006, the Revenue Divisional Officer filed a complaint before the Additional Sessions Cum Fast Track Court, No.I, Tuticorin, and the same is pending without any progress. The learned counsel for the petitioner brought to the notice of this Court that one of the aggrieved parties filed an application to implead one accused, who has been left out in the charge sheet and the same was dismissed by the lower Court and thereafter, a revision was filed before this Court and this Court directed the Investigating Officer to implead the said person as one of the accused and the accused, who was aggrieved against such order passed by this Court, preferred SLP No.3639/2008 and in the said Special Leave to Appeal (CRL), the Hon'ble Apex Court stayed the order of this Court and as such, proceedings are pending without any progress.
4. The learned counsel for the petitioner contended that in view of the above said sequence of events, there is no progress in the criminal proceedings and as a result the promotion prospects of the petitioner were affected. It is contended that the juniors to the petitioner have already been promoted to the post of Inspector of Police and the petitioner has been deprived of his promotion only due to the pendency of the criminal case. The learned counsel further contended that there is absolutely no fault on the part of the petitioner for the delay in the criminal proceeding and as such, he is entitled for temporary promotion. The learned counsel in support his contention would place reliance on the similar orders passed by this Court in W.P.No.26172 of 2007 dated 17.08.2007, in Subramaniyam and others vs. The Director General of Police and others, wherein this Court by placing reliance on provision under Rule 39 of General Rules for Tamil Nadu State and Subordinate Services directed the concerned authority to promote the Officer on condition to file an affidavit of undertaking as incorporated in the said order. The learned counsel for the petitioner would submit that the petitioner is also ready to file such an affidavit of undertaking before the respondent herein enabling him to get temporary promotion to the post of Inspector of Police.
5. Heard the learned Special Government Pleader on the submissions made by the learned counsel for the petitioner. The learned Special Government Pleader contended that this Court passed a similar order as relied by the learned counsel for the petitioner in W.P.No.26172 of 2007, wherein as per the provision of Rule 39 of General Rules for Tamil Nadu State and Subordinate Services this Court directed the concerned authority to promote the Officer on condition to file an affidavit of undertaking as incorporated in the said order. It is pointed out by the learned Special Government Pleader that the learned Judge placed reliance on a similar matter, wherein, the said Officer filed an affidavit of undertaking for accepting certain conditions as incorporated in the order of the learned Judge in W.P.No.26172 of 2007. Therefore, it is submitted that the petitioner may be directed to file such an affidavit of undertaking.
6. I have carefully considered the submissions of both sides and perused the materials available on record.
7. The fact remains that the petitioner was working as a Sub Inspector of Police and thereafter, he was implicated in a case of custodial death as early as in the year 1999. It is seen that simultaneously departmental proceedings were also initiated and as a result, the petitioner filed an application in O.A.No.7976 of 2001 before the Tamil Nadu Administrative Tribunal and the Tribunal by an order dated 19.12.2001 ordered to defer the departmental enquiry till the disposal of the criminal case. It is seen that in the criminal case, a final report was filed only in the year 2006 and thereafter the Additional Sessions Court-cum-Fast Track Court, No.I Tuticorin, taken cognizance of the case in S.C.No.226 of 2006. Thereafter, the aggrieved person filed an application by invoking provision under
Section 319 Cr.P.C. for impleading one more accused in the said case and the said application was rejected by the trial Court and against that a revision was filed before this Court and this Court set aside the order of the trial Court and directed to implead the said accused as one of the accused and against the said order, the said accused preferred a S.L.P.(Crl)No. 3639/2008 before the Hon'ble Apex Court and the Hon'ble Apex Court granted an order of stay of the order passed by this Court for impleading the said accused and as a result, there is absolutely no progress in the criminal case right from the year 2006, in respect of the alleged incident said to have taken place in the year 1999. It is pertinent to note that the petitioner is in no way responsible for such inordinate delay. It is needless to state that meanwhile number of juniors of the petitioner have been promoted and as a result, the petitioner has been deprived of his opportunity for his lawful promotion, but for the pendency of the criminal proceedings. The learned counsel for the petitioner rightly placed reliance on the order passed by this Court in W.P.No.26172 of 2007 dated 17.08.2007, wherein this Court passed an order which reads hereunder:
2.Learned counsel appearing for the petitioners contended that in respect of another person by name K.Raman, the respondents have considered his claim and given promotion to him. While so, the case of the petitioners have not been considered.
3.Learned Government Pleader appearing for the respondents clearly conceded that the case of the petitioners will be considered on part with K.Raman, who has been promoted as Sub Inspector of Police purely on temporary basis under Rule 39 of General Rules for Tamil Nadu State and Subordinate Services subject to the outcome of the criminal proceedings launched by the C.B.I. And pending departmental proceedings. Further the learned Special Government Pleader submitted that the said official has been given an undertaking to the following effect and hence his case has been considered. "(i)He will be reverted if he comes to any adverse notice while serving as Temporary S.I.
(ii)He should not claim any seniority for the period of temporary promotion.
(iii)He should not file any cases before the court in future claiming seniority for the period of temporary promotion.
(iv)For further promotion as Inspector, his date of regularisation along with his Men counterpaet alone will be considered and not on date in which she has been given temporary promotion.
If the petitioners are willing to give an affidavit of undertaking to that effect, the case of the petitioners would also be considered.
4.Today, when the matter has been taken up, the learned counsel appearing for the petitioners filed an affidavit of the petitioners giving the above said undertaking.
5.Taking note of the same, the first respondent is directed to pass orders promoting the petitioners to the next higher grade post within a period of four weeks from the date of receipt of a copy of this order. This Writ Petition is disposed of accordingly. Consequently M.P.No.1 of 2007 is closed. No costs.
8. A reading of the above said order makes it crystal clear that there is a provision under Rule 39 of General Rules for Tamil Nadu State and Subordinate Services providing temporary promotion to the delinquent officer during the pendency of the departmental proceeding. It is seen that in the said matter the concerned delinquent officer filed an affidavit of undertaking to comply with four conditions stipulated in the earlier order of this Court as already incorporated in the earlier paragraph of this order.
9. A Division Bench of this Court in W.P.Nos.9046 to 9048 of 2004 by order dated 06.02.2006 directed the authorities concerned in that petition to promote similarly placed officers on filing individual affidavits of undertaking by the officers by accepting the above said conditions.
10. In view of the above said orders and in view of Rule 39 of General Rules for Tamil Nadu State and Subordinate Services, this Court is constrained to direct the petitioner herein to file a similar affidavit of undertaking accepting to abide by four conditions as incorporated in the earlier order of this Court in W.P.No. 26172 of 2007 dated 17.08.2007 as stated above within a period of two weeks from the date of receipt of a copy of this order. On receipt of such affidavit of undertaking from the petitioner incorporating acceptance of four conditions as stated above, the respondent herein is directed to pass orders temporarily promoting the petitioner to the next higher cadre post within a period of four weeks from the date of receipt of affidavit of undertaking of the petitioner, if he is otherwise eligible for such promotion. With the above direction, this Writ Petition is disposed of. No costs. Consequently connected Miscellaneous Petitions are closed.
RR To The Director General of Police, Tamil Nadu, Chennai-4