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2009 Supreme(Mad) 1005
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI & THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
The Government of Tamil Nadu rep. by Secretary to Government Home Department & Others
Versus
K. Kamalanathan
W.A.No.839 of 2008
Decided on: 06-04-2009
For the Appellants: R. Thirugnanam, Special Government Pleader.
For the Respondent:M.S. Soundararajan, Advocate.
A point not raised before the lower court cannot be raised for the first time in the higher court.
Headnote:
Promotion - Police Constable - 1980 Promotion List - [S.S.L.C. qualification, B.A. Degree, promotion test, inclusion in promotion list, delay in filing petition, comparison with another constable] - [Office orders dated 10. 1980 and 110. 1980, Memo C.No.60497/NGB 3(3)/86] - The court discussed the inclusion of names in the promotion list, the delay in filing the petition, and the comparison with another constable. The court also considered the legal principle that a point not raised before the lower court cannot be raised for the first time in the higher court.
Fact of the Case:
The respondent, a Police Constable, claimed entitlement to benefits from 1980 to 1993 due to his inclusion in the 1980 promotion list. The court considered the delay in filing the petition and compared the respondent's case with another constable.
Finding of the Court:
The court dismissed the writ appeal, finding that the respondent was entitled to benefits on par with another constable who had been given similar benefits.
Issues: The issues included the entitlement to benefits from 1980 to 1993, the delay in filing the petition, and the comparison with another constable.
Ratio Decidendi: The court held that a point not raised before the lower court cannot be raised for the first time in the higher court. The respondent was entitled to benefits on par with another constable who had been given similar benefits.
Final Decision: The writ appeal was dismissed, and no costs were awarded. M.P.No.1 of 2008 is closed.
P. Jyothimani, J.
1. The respondents in the writ petition have filed the present writ appeal against the order of the learned Judge dated 12. 2007, by which the learned Judge has declared that the respondent herein/petitioner is entitled to the relief claimed, namely to include his name in the C list drawn for Junior Promotion in the year 1980, while ordering that the respondent will, however, be entitled to all attendant benefits only from the date of joining the promotional post and not from the date on which he should have been considered for promotion for the said post.
2. The respondent has claimed that he should have been considered for promotion in the panel of the year 1980, whereas it is admitted that the name of the respondent has been included in the year 1993 and all the benefits have been given from 1993 onwards. The short point that was to be decided in the writ petition was about the benefits to be conferred on the petitioner from 1980 to 1993.
3. The respondent was enlisted as Grade-II Police Constable on 112. 1973 in Madras City Police. He was, originally, having S.S.L.C. qualification and subsequently, in 1988, he passed B.A. Degree. He was working in Armed Reserve and transferred to Crime Branch, CID. It was stated that in October, 1980, tests were conducted in Crime Branch CID for Grade-II Police Constable to award Junior Promotion of Grade-I Police Constables, as per the office orders dated 10. 1980 and 110. 1980. The respondent had taken part in the said test. A list was drawn by such of those Grade-I Police Constables who passed the tests and the same was sent to the respective parent departments with a direction to include their names in the C list. It is the case of the respondent that the names of all the Grade-II Police Constables, whose parent department was other than Madras City, were included. Even though the respondents name was placed in serial No.41, his name was not included in the C list and he was not given his due promotion unlike others, who have taken part in the test conducted in Crime Branch, CID, Madras. When the respondent filed Original Application in O.A.No.4659 of 1993, which was transferred to this Court as W.P.No.14722 of 2006, he was working in Crime Branch, CID, Chennai.
4. The respondent has also brought out a similar instance of one Gopal, 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 the Chief Officer, discriminating the Grade-II Police Constables.
5. The respondent also brought another instance of one Subramani, P.C.No.410, who was in serial No.56, who also filed an Original Application and pursuant to the orders therein, was promoted as Head Constable and got all benefits.
6. In the reply filed by the appellants, the appellants are stated to have informed this Court that the name of said Gopal, P.C.No.5256, has been wrongly included in the Junior Promotion list of the year 1980 and steps would be taken to cancel the said inclusion.
7. However, the learned Judge found a communication from the Director General of Police in July, 2003, wherein the Director General has not only promoted the said Gopal as Grade-I Police Constable, but has also directed to promote him as Head Constable with effect from 3. 1988. The order of the Director General of Police, which has been extracted by the learned Judge, is as follows:
"The Commissioner of Police, Chennai City is requested to implement the Chief Office order issued in Memo C.No.60497/NGB 3(3)/86, dated 210. 1986. The petitioner, HC 5256 Gopal, Chennai City may be upgraded as Gr I PC with effect from 13.03.81 and as HC with effect from 10.03.88 on par with his immediate junior PC 6052, Umapathy (Sl.No.8(B) of Gr I C list) as the further action on show cause notice issued by the Government was dropped as TAT order."
8. The learned Judge, taking note of the fact that no steps have been taken to cancel the inclusion of the name of Gopal, P
