Vijayakumaar v. The Principal Secretary, Department of Home Secretariat, Thiruvananthapuram and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935 WP(C).No. 12959 of 2013 (T) ---------------------------- PETITIONER(S): ------------- VIJAYAKUMAR AGED 49, S/O.DAMODHARAN PILLAI RAMARASSERRY VIJAYA VILASOM VEETTIL MOONUMUKKU, PANGODU PANCHAYATH THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON RESPONDENT(S): -------------- 1.THE PRINCIPAL SECRETGARY DEPARTMENT OF HOME SECRETARIAT, THIRUVANATHAPURAM-695001 2.DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS VAZHUTHAKKADU THIRUVANANTHAPURAM-695004 3.P.REGHU DEPUTY SUPERINTENDENT OF POLICE CRIME BRANCH (HURT AND HOMICIDE WING) THIRUVANTHAPURAM-695001 BY GOVERNMENT PLEADER SRI.RAJESH VIJAYAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).12959/13 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1:THE COPY OF REPRESENTATION DATED 20.5.2013 BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE **“C.R”** ## **C.T. RAVIKUMAR, J.** **========================== W.P.(C). No. 12959 OF 2013 ==========================** Dated this the 24[th] day of May, 2013 ## **JUDGMENT** The unfortunate father of one Adarsh Vijayan who met with untimely death on 5.4.2009 filed this petition seeking an unusually strange relief. It is his case that the crime registered in connection with the death of his son is being investigated by the third respondent and he being an able police officer may be directed to be retained in service beyond the age of superannuation for the completion of the investigation in crime No.198/CR.TVM/09. Crime No.129/2009 of Pangodu Police Station was originally registered in connection with the said crime under section 174 of the Code of Criminal Procedure and subsequently, the investigation was handed over to the Crime Branch and thereupon, it was re-numbered as above. Later, section 302 IPC was also added in the said crime. The third respondent viz., W.P.(C).12959/13 2 the investigating officer in the aforesaid crime is to retire from service on attaining the age of superannuation on 31.5.2013. The contention of the petitioner is that the investigation is at its fag-end and therefore, if the investigating officer is permitted to retire from service on 31.5.2013, it would adversely affect the progress of the investigation. It is in the said circumstances that this petition has been filed seeking issuance of a writ of mandamus commanding respondents 1 and 2 to retain the third respondent in service beyond the period of superannuation for a further period of three months with effect from 31.5.2013 for proper completion of the investigation in the aforesaid crime. The further prayer is for issuance of a writ of mandamus or appropriate direction commanding the first respondent to take a decision on Ext.P1 which is the representation filed by the petitioner before the first respondent carrying the aforesaid prayer. 2. I have heard the learned counsel for the petitioner and the learned Government Pleader. It is unfortunate that the one and only W.P.(C).12959/13 3 son of the petitioner had to meet with untimely death on 5.4.2009. It is true that the crime was registered, initially, only under section 174, Cr.P.C. After handing over the investigation to Crime Branch and consequent to its re-numbering as aforesaid, section 302 IPC was added and the investigation is in progress. Be that as it may, the question is whether the defacto complainant can seek for extension of the service of the investigating officer in the crime registered at his instance beyond the age of superannuation in Government service solely for the purpose of completing the investigation in the concerned crime. The learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court in **P.Venugopal v. Union of India [2008 (5) SCC 1]** . My attention was drawn to paragraph 9 of the said decision. After a careful scanning of the said decision more particularly of the aforesaid paragraph, I am at a loss to understand how and in what manner the said decision could be made applicable in the instant case. That was a case filed by a person who suffered a premature termination and consequential removal from the office of W.P.(C).12959/13 4 the Director of All India Institute of Medical Sciences challenging his removal from the said office. In the said case, the Hon'ble Apex held that once a person is appointed or posted to an office in a governmental department, the government servant acquires a status and thereupon, his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules framed or which might be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than of contract. As noticed hereinbefore, it is the third respondent who is conducting the investigation in the aforesaid crime. In the light of the statutory provisions and also going by the very decision in **P** . **Venugopal's** case (supra), the status, rights and obligations of the third respondent are governed by the statutes and statutory rules applicable to him. Knowing fully the rights and obligations and also his status, the third respondent has never chosen to approach this Court seeking any such prayer, as sought for, by the petitioner. It is the petitioner who approaches this Court with such a W.P.(C).12959/13 5 prayer. What is the enforceable legal right of the petitioner ? In W.A.No.2467 of 2009, a Division Bench of this Court held:- “It is elementary that this Court will issue a writ of mandamus to an authority if it is shown that the said authority has failed to exercise a duty and the same creates a corresponding right in the applicant to seek performance of that duty.” The learned counsel though made a feeble attempt by relying on the decision referred above, could not establish any such enforceable legal right. The petitioner could not bring to my attention the statutory provision which creates a duty on respondents 1 and 2 to look into Ext.P1 representation and a corresponding legal right on the petitioner. If that be so, how can the petitioner claim for issuance of a writ of mandamus? Merely because of the fact that the third respondent is the officer conducting the investigation in the crime registered in connection with the death of his son, the petitioner cannot be heard to contend that the said officer should be retained in service beyond the age of superannuation for completing the investigation in the aforesaid crime. In such circumstances, the W.P.(C).12959/13 6 petitioner is also not entitled to seek for a direction to the respondents to consider Ext.P1 which carries the prayer found hereinbefore as palpably unsustainable. The learned counsel for the petitioner submitted that the petitioner was constrained to approach this Court with the aforesaid prayer only to see that the progress in investigation of the aforesaid crime would not make standstill with the retirement of the third respondent. I have no hesitation to hold that there is no reason or basis for entertaining such an apprehension as in Governmental service in respect of all posts borne in all cadres persons may come and go for various reasons but vacation or demitting a particular office by a particular individual will not and cannot create any vacuum and the vacancy will be duly filled up by resorting to recognized methods and in the interregnum by resorting to temporary arrangements if administrative exigency beckons for such arrangement. I am sure that even after the retirement of the present investigating officer, the investigation in the aforesaid crime will be continued and completed, in accordance with law, if its W.P.(C).12959/13 7 investigation was not completed prior to his retirement. There is absolutely no merit in the writ petition and therefore, it is liable to fail. Resultantly, this writ petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** W.P.(C).12959/13 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** W.P.(C).12959/13 9