IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24331 of 2010 and M.P.No.1 of 2010 K.Jeyabarathi ...Petitioner Vs. 1.The Secretary to Government, Home (Prison-I) Department, Fort St. George, Chennai-9. 2.The Inspector General of Prisons, Egmore, Chennai-8. ...Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondent to post the petitioner as Superintendent of Prison in any one of the Central Prisons in order to comply with the norms for further promotion as Deputy Inspector General of Prisons. For Petitioner : Mr.K.Venkataramani, SC for Mr.M.Muthappan For Respondents : Ms.C.Devi,GA O R D E R The petitioner has filed the present writ petition, seeking for a direction to post the petitioner as Superintendent of Prison in any one of the Central Prisons so that she will have the norms for further promotion to become the Deputy Inspector General of Prisons. 2. Notice was issued to the respondents. On such notice, the respondents have filed a counter affidavit dated 14.03.2011. 3. The case of the petitioner was that the Tamil Nadu Jail service is a constituted service under Article 309 of the Constitution. The post of Superintendent of Central Prisons is listed as Category - 3 in Class 1. The Superintendent of Special Prison for women is listed as Category -1 in Class- II. For further promotion to the post of DIG of prison, which is Category-2 in Class -I, it is stipulated that a person must have https://hcservices.ecourts.gov.in/hcservices/ served as Superintendent of Central Prison or Borstal School for a period of not less than five years. The petitioner was appointed as a Jailor by direct recruitment vide G.O.Ms.No.484, Home, dated 24.03.2004. Subsequently, by proceedings in G.O.(D). No.664, Home, dated 06.06.2007, she was promoted as Additional Superintendent of Prisons and posted to act as such in District Jail, Dindigul. Subsequently, by G.O(Ms.)No.1376, Home Department, dated 13.10.2008, she was promoted as Superintendent of Prisons under Rule 39(a)(i) of the General Rules for Tamil Nadu State and Subordinate Services and posted to act as Superintendent of prison in Borstal School, Pudukottai. 4. Even before she could complete 5 years in the said post so as to be qualified to become the DIG of prisons, she was given a posting order to work as Superintendent of Prisons at Special Prison for Women at Trichy. When the petitioner made representations dated 12.03.2010 and 15.04.2010, she was informed by the second respondent vide communication dated 27.05.2010 that there are not enough women Superintendents to be posted in the Special Prison for Women. Therefore, she was directed to continue to work in the Special Prison for Women. It was also stated that at the time when promotion chance comes for higher post, her case can be considered on the basis of her qualification. Aggrieved by the stand taken by the respondents, the petitioner has filed the present writ petition. 5. Mr.K.Venkatramani, learned Senior Counsel appearing for Mr.M.Muthappan, counsel for the petitioner contended that the assurance given by the respondents that her case will be considered for promotion to the post of DIG of prisons cannot be accepted. Since the statutory rules framed under Article 309 clearly stipulates 5 years of service as Superintendent in the Central Prisons or Borstal School as a condition precedent, the assurance given by the respondents cannot be accepted. Secondly, it was contended that though she was qualified to hold the post as Category 3 in Class I, her continued retention in Category I in Class II in a lower post amounts to discrimination. 6. In the counter affidavit filed on behalf of the first respondent State, it was stated that though she belongs to Category III in Class I, she has been posted to act as Superintendent of Special Prison for Women in order to meet the administrative exigencies and it is not a case of demotion. It is unnecessary to state at this juncture that even a person holds higher post can be directed to discharge the functions of the lower post without prejudice to the status and emoluments. With reference to scale of pay, it was stated that both posts carries same scale of pay. With reference to the apprehension of not being considered for higher post, in paragraph 5 of the counter, the respondents have averred as follows:- "5. The petitioner is Superintendent of Central Prisons and belongs to Category 3 in Class-I only. But in view of the administrative exigency only, she has been posted to act in Special Prison for https://hcservices.ecourts.gov.in/hcservices/ Women, Trichy. Hence, she will become eligible for promotion to the post of Deputy Inspector General of Prisons on completion of 5 years of service in the category of Superintendent of Central Prisons irrespective of her appointment at Special Prison for Women, if she is otherwise qualified. In the Special rule for the the Tamil Nadu Jail Service also no norms have been prescribed that one must have served in Central Prisons as Superintendent of Prisons for a period of not less than 5 years for promotion to the post of Deputy Inspector General of Prisons as contended by the petitioner. Hence, the contention of the petitioner in this paragraph is baseless." 7. In view of the above, it can be clearly said that this Court cannot direct the posting or transfer of a Government servant as it entirely falls within the domain of the executive. In the absence of infraction of any Rule or law, this Court cannot grant the prayer made by the petitioner. The apprehension that she may not be considered for higher post at the time of promotion has been sufficiently allayed by the stand taken by the first respondent State. 8. In the light of the above, it is unnecessary to entertain the present writ petition. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary, Government of Tamilnadu, Home (Prison-I) Department, Fort St. George, Chennai-9. 2.The Inspector General of Prisons, Egmore, Chennai-8. + 1 cc to M/s. M. Muthappan, Advocate SR No.29777 + 1 cc to Government Pleader, SR No.29204 KJ(CO) SR/4.5.2011 ORDER IN W.P.NO.24331 of 2010 https://hcservices.ecourts.gov.in/hcservices/