Lordship s vaithiyanathan judge full orderIn view of the foregoing discussions and observations, this Court is of the view that, black mark is also a punishment and the respondents have rightly deprived him the promotion on the ground of existence of currency of punishment, which does not warrant any interference by this Court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.07.2020
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.19737 of 2010
G.Gopal … Petitioner
vs.

1. The Deputy Inspector-General of Police,
Salem Range, Salem.

2. The Superintendent of Police,
District Police Office,
Dharmapuri District,
Dharmapuri. … Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mamdamus, calling for the records pertaining to the order of the second respondent herein passed in his Na.Ka.No.A2/9790/2010 dated 30.04.2010 and the Order of the first respondent herein passed in his Rc.No.A3/712/7839/2010 dated 31.07.2010 and quash the same and consequently direct the first respondent herein to promote the petitioner as Special Sub-Inspector of Police with effect from 07.01.2010 with all consequential monetary and service benefits.
For Petitioner : Mr.Ravi Shanmugam
For Respondents : Mr.A.Zakir Hussain
Govt. Advocate
*****
O R D E R
The Writ Petition has been filed, challenging the order of the second respondent passed in his Na.Ka.No.A2/9790/2010 dated 30.04.2010 and the order of the first respondent passed in his Rc.No.A3/712/7839/2010 dated 31.07.2010, by which the request of the petitioner for promotion as Special Sub-Inspector of Police with effect from 07.01.2010, irrespective of he currency of punishment of Black Mark was rejected by the respondents. The petitioner also sought a direction to the first respondent to promote him as Special Sub-Inspector of Police with effect from 07.01.2010 with all consequential monetary and service benefits.
2. According to the petitioner, he joined the service as Grade-II Police Constable on 11.03.1976 and was promoted as Head Constable on 22.04.1998. Though he had completed 10 years of service as Head Constable as early as on 22.04.2008, in the promotion list to the cadre of Special Sub-Inspector of Police, his name did not find place. It is the case of the petitioner that he sent a representation dated 03.05.2010 to the 1st respondent with a request to promote him as Special Sub-Inspector of Police and since there was no response on the said representation, he was forced to file a Writ Petition in W.P.No.12846 of 2010, in which the 1st respondent was directed to dispose of the representation within eight weeks. Consequent to the said direction, the 1st respondent passed an order on 31.07.2010, rejecting his representation, on the ground that the punishment of black mark awarded vide P.R.No.1 of 2009 is in currency till 15.03.2011 and his request for promotion would be considered on completion of punishment period. It is the further case of the petitioner that as per G.O.Ms.No.368 Personnel and Administrative Reforms Department dated 18.10.1993, black mark punishment has no currency for one year, though the punishment of censure has got one year currency. Therefore, it is pleaded that the impugned orders are unsustainable and liable to be set aside.
3. Learned counsel for the petitioner submitted that the petitioner had received 45 rewards for his efficient service in his 34 years of service and the system of black mark is a common one in the Police Department, especially below the rank of Head Constable. Hence, the orders passed by the respondents in depriving promotion of the petitioner as Special Sub-Inspector of Police are without application of mind and need intervention by this Court.

4. Per contra, learned Government Advocate, appearing for the respondents, by referring to the counter affidavit filed by the 2nd respondent, vehemently contended that black mark is also a punishment and since the petitioner was awarded with one such punishment on 12.02.2010 and the same was in currency as on the date of preparation of panel for promotion to the post of Special Sub-Inspector of Police, his name was not rightly included in the list, as, during the currency of punishment, there is no need to consider the name of the petitioner for promotion. In support of his contention, he also referred to G.O.Ms.No.368 P&AR (O) Department dated 18.10.1993 and G.O.Ms.No.937 Home (Pol.3) Department dated 21.07.1998. Thus, it is prayed that the Writ Petition is to be dismissed as devoid of merits.

5. Heard the learned counsel for the parties and perused the material documents available on record, including the various Government Orders relied on by the respondents.

6. A careful scrutiny of the entire scenario unfolds the fact that admittedly, there was a currency of punishment in existence, when the list of Head Constables, who are entitled to be promoted as Special Sub-Inspectors of Police, was published. Though it was argued on the side of the petitioner that black mark is not at all a punishment and the said punishment is common in the Police Department, a reading of the order dated 12.02.2010 passed in P.R.1 of 2009 discloses the fact that charges levelled against the petitioner were indeed serious in nature, inasmuch there was evidence against him to the effect that he received bribe for not taking action against illicit liquor sellers. The order further states that considering the fact that he had not received any punishment throughout his 34 years of service, the minor punishment of black mark was imposed on him, thereby a mercy was shown to him.

7. The petitioner was charged under Rule 3(b) of Tamil Nadu Police Subordinate Service ( Discipline and Appeal) Rules, 1995 in P.R.No.1 of 2009 and a charge memo was also served on him on 07.01.2009. G.O.Ms.No.937 Home (Pol.3) Department dated 21.07.1998 specifically states that there should not be any charge or criminal case pending under Rule 3(b) at the time of preparation of panel of Head Constables for promotion to the post of Special Sub-Inspectors of Police. For the sake of convenience, the relevant paragraph of the said Government Order is extracted below:
“4/fhty;Jiwj;jiyik ,af;Fehpd; nkw;go ghpe;Jiufis muR tpupthfg; ghprPypj;J. mtw;iw Vw;fyhk; vd;W Kot[ bra;Js;sJ/ mjd;go gj;jp 2?y; Fwpg;gpl;l K:d;W gphpt[fspy; bkhj;jk; 25 Mz;Lfs; fhtyh;fshf;g gzpg[hpe;J. mjpy; 10 Mz;Lfs; jiyikf;fhtyh;fshf ? cwtpy;jhh;fshf gzp Koj;j jiyikf;fhtyh; kw;Wk; cwhtpy;jhh;fSf;f fPH;f;fz;l epge;jidfSld; rpwg;g[ cjtp Ma;thsh;fshf;g gjtp cah;t[ mspf;f muR Miz ,LfpwJ ?

(m) ,th;fs; gjtp cah;t[ bgWtjw;F Kd;dh; cs;s 5 Mz;Lfspy; jz;lid VJk; bgw;wpUf;ff;TlhJ/
(M) jz;lid tpjpfspd; gphpt[ 3(gp)?d; fPH; Fw;wr;rhl;nlh my;yJ fphpkpdy; tHf;nfh ,th;fs; kPJ vJt[k; epYitapy; ,Uf;ff;TlhJ/
(,) gjtp cah;t[ mspg;gJ kw;Wk; njh;t[g;gl;oay; jahhpg;gJ rk;ge;jkhf. muR 18/10/93 ehspl;l. gzpahsh; kw;Wk; eph;thfr;rPh;jpUj;jj;Jiw Miz vz; 368?y; tFj;Js;s tpjpKiwfspd;go ,th;fs; jFjp bgw;wpUf;f ntz;Lk;/”
8. From the above conditions, it is clear that pendency of 3(b) charges is a bar for consideration of promotion to the next level of promotion and there is no reference that the punishment of black mark was excluded in it. It is also not in dispute that the currency of punishment of black mark, imposed under Rule 3(b), was pending against the petitioner as on the said date. In
S.VAIDYANATHAN,J.
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addition to the aforesaid Government Order, the guidelines issued in G.O.Ms.No.368 Personal and Administrative Reforms Department, dated 18.10.1993 under Clause (II) of sub-clause (iv) further state that in cases where specific charges have been framed or charge sheet has been filed in criminal case, promotion / appointment of such persons shall be deferred till the proceedings are concluded.

9. In view of the foregoing discussions and observations, this Court is of the view that, black mark is also a punishment and the respondents have rightly deprived him the promotion on the ground of existence of currency of punishment, which does not warrant any interference by this Court. In fine, the Writ Petition is dismissed and the relief sought for by the petitioner cannot be granted. No costs.
10.07.2020
Index: Yes/No
Internet: Yes / No
Speaking Order: Yes/No
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To:
1. The Deputy Inspector-General of Police,
Salem Range, Salem.

2. The Superintendent of Police,
District Police Office,
Dharmapuri District,
Dharmapuri.