O R D E R

[Order of the Court was made by M.SUNDAR, J.]

Captioned writ petition has been presented in this Court on

11.09.2023 with a Certiorarified Mandamus prayer.

2.Short facts (shorn of particulars not imperative for appreciating this order) are that the writ petitioner's son Thiru. Manikandan @ Kalaimani is a prison inmate; that the 'writ petitioner's son' (hereinafter be referred to as 'prison inmate' for the sake of convenience and clarity) is now confined in Central Prison, Cuddalore and his prison inmate number is C.T.No.14935; that the prison inmate was convicted and sentenced vide order dated 22.04.2013 in S.C.No.51 of 2011 on the file of Sessions Judge, Mahila Court, Cuddalore and has remained incarcerated for over nine years now; that leave has been sought inter alia on the ground that there are two young daughters whose education has to be taken care of and that the writ petitioner herself who is taking care of them is unwell; that the central theme of captioned writ petition is request for 40 days Ordinary Leave without escort that was negatived by the fourth respondent vide order dated 18.08.2023 in reference No.14310/Tha.Ku.2/2023 and challenging the same the captioned writ petition has been filed.

3.Adverting to the case file, Mr.B.Gopalakrishnan, learned counsel representing the counsel on record for the writ petitioner reiterated the grounds on which leave has been sought. Learned counsel pointed out that:

(a)the reasons have not been subjected to disputation or contestation;

(b)that the prison inmate has gone on leave on multiple occasions earlier and nothing untoward had happened;

(c)that the prison inmate has remained incarcerated for nearly ten years now;

4.Issue notice.

5.Mr.E.Raj Thilak, learned State Additional Public Prosecutor accepts notice for all respondents.

6.Learned Prosecutor referred to an 'order dated 18.08.2023 bearing reference No.14310/Tha.Ku.2/2023' [hereinafter 'impugned order' for the sake of convenience and clarity] and submitted that the leave plea qua prison inmate came to be rejected by the fourth respondent essentially owing to clause (b) of Rule 21 of 'The Tamil Nadu Suspension of Sentence Rules 1982' [hereinafter 'said Rules' for the sake of convenience and clarity]

which reads as follows:

'21.Non-eligibility for ordinary leave. - The following categories of prisoners shall not be eligible for ordinary leave:-

(a)...

(b)Prisoners sentenced under sections 392 to 402 of the Indian Penal Code (Central Act 45 of 1860);

(c)... (d)... (1)... (2)... (3)... (4)... (5)... (6)... (7)... (e)... (f)... (g)...'

7.After hearing both sides, we find that the only impediment in the case on hand is Rule 21(b) of said Rules. We had an occasion to deal with Rule 21(b) of said Rules in Mr.Akram Khan's case vide order dated 19.07.2023 made in W.P.No.21242 of 2023 and a scanned reproduction of the same is as follows:

8.The aforementioned Akram Khan's case order was written as Rule 21(b) of said Rules which was made more than four decades ago was made in a different social context i.e., different social setting and the same has now become anachronistic. Besides Akram Khan case, we have also held in Selvam case vide order dated 15.09.2023 made in W.P.No.27137 of 2023 that the said Rules is a piece of Subordinate Legislation made by Executive Arm in exercise of powers under Section 432(5) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity and clarity] and therefore, a piece of Subordinate Legislation which has not been put through the law making grind i.e., Legislative drill in the Legislature can hardly constrict, construct or abridge, much less denude the Constitutional powers of this Court.

9.On carefully considering the facts and circumstances of the case on hand, we find that the convict prisoner's conduct inside the prison is blemishless and he has not come to the adverse notice of the prison authorities. The reason i.e., the ground on which leave has been sought is