IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.16187 of 2011 and M.P.No.1 of 2011 R.Kumar .. Petitioner Vs. The Secretary, Tamil Nadu Public Service Commission, Government Estate, Chennai-2 .. Respondent This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the respondent in connection with the impugned order passed by the respondent in Memorandum No.6952/PD-B3/2007, dated 25.03.2011 and quash the same and to further direct the respondent to pay subsistence allowance at 75% p.m. from 20.6.2008 to till date. For Petitioner : Mr.K.Venkatramani, SC for Mr.M.Muthappan For Respondent : Mr.V.Subbiah, Spl.G.P. ORDER The petitioner has come forward to file the present writ petition seeking to challenge an order dated 25.3.2011 passed by the respondent Tamil Nadu Public Service Commission (for short TNPSC). The said order came to be passed on the petitioner earlier filing a writ petition being W.P.No.21659 of 2010, seeking to challenge an order dated 26.9.2008 wherein and by which the respondent had rejected the request for increase in subsistence allowance on the ground that the criminal investigation is still pending. This court by a final order, dated 26.10.2010 had directed the respondent to consider the case of the petitioner in the light of FR 53(1). The petitioner had also filed a contempt petition being Contempt Petition No.513 of 2011 for not obeying the earlier order. 2.In the meanwhile the respondent had passed the impugned order. In the impugned order, it was stated that because of the petitioner's alleged involvement and malpractice which took place at Gudalur Centre on 17.11.2007 in connection with the Combined https://hcservices.ecourts.gov.in/hcservices/ Subordinate Services Examination, the petitioner was placed under suspension on 20.12.2007. He was paid 50% of the subsistence allowance. The petitioner sought for enhancement of subsistence allowance and the same was refused by a non speaking order. Subsequently, on direction from this court the respondent had stated in the impugned order as follows: "The Commission re-considered the case of the individual in the light of the report submitted by the CBCID and is of the view that the nature of criminal case/malpractice committed by him at the Gudalur Centre on 17.11.2007 in connection with the Combined Subordinate Services Examination – 2007 has necessitated the criminal investigation for a lengthy period as a result of which his suspension was required to be continued. Therefore, the prolongation of his suspension being directly attributable to his action, the disciplinary authority deems it not necessary to increase the subsistence allowance and in such circumstances there is no scope for passing of consequential orders as stated in the Hon'ble High Court's order under compliance." 3.Assailing the said order, Mr.K.Venkatramani, learned Senior counsel appearing for the petitioner contended that the impugned order shows the non application of mind. The petitioner is entitled for enhancement of subsistence allowance. But, however, a perusal of FR 53 clearly shows that it is not an absolute right of the petitioner to get subsistence allowance enhanced and that discretion is still vest with the authorities to grant or refuse such enhancement. The condition is that if no allegation is made against the Government servant directly attributable to him for delay in completing the investigation or enquiry, then it may be enhanced. In the present case, the impugned order shows that the criminal investigation had taken a long time and therefore the petitioner's suspension became necessary. The prolongation of suspension was directly attributable to the petitioner's action. Hence it cannot be enhanced. 4.This court do not find any illegality or infirmity in the impugned order. It is not even a case where the petitioner was a last grade Government servant, where the denial of a portion of wages may also result in economic deprivation to run the family. Inasmuch as the petitioner was booked for criminal case and that he has been paid 50% as subsistence allowance, this court is not inclined to entertain the writ petition. 5.In the present case, yet another fact is that by a communication of the Government, dated 27.1.2010, an employee placed under suspension after 1.1.2006, pay fixation can be given on the revised scale with effect from 1.1.2006 or on a subsequent date opted by him prior to the date of placing under suspension and arrears also will be paid to him. https://hcservices.ecourts.gov.in/hcservices/ 6.The question of pay revision during suspension is covered by a judgment of the Supreme Court in Union of India v. R.K. Chopra reported in (2010) 2 SCC 763 and in paragraph 19, the Supreme Court had held as follows: "19.The abovementioned Rules as well as the memorandum makes it clear that if there is a revision of scale of pay in respect of a post held by a government servant, prior to the suspension period, he is permitted to exercise option under FR 23, even if the period during which he is to exercise the option falls within the period of suspension and then, he will be entitled to the benefit of increase in pay and also in subsistence allowance for the period of suspension, as a result of such option. But if the revised scale of pay takes effect from a date falling within the period of suspension then, the benefit of option, for revised scale of pay will accrue to him in respect of the period of suspension only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not." 7.The question of enhancement of subsistence allowance during the pendency of criminal case also came up for consideration before the Supreme Court in Principal, J.D. Patil Sangludkar v. Ganesh reported in (2003) 9 SCC 164 in paragraph 5, the Supreme Court had held as follows: "5.The provision to increase the rate of subsistence allowance pending suspension after a certain stipulated period is normally envisaged to ensure that the employer or the management concerned does not indefinitely keep an employee under the pretext of suspension out of his office without completing the inquiry and take advantage of its own lapse or delay in completing the disciplinary proceedings. In a case of the nature where the accused is charged with a serious criminal offence and is facing prosecution for the same at the instance of the police before competent criminal courts and the adjudication in respect of the same by the competent criminal court which is seized of the matter has to be awaited as a matter of necessity, and the service rule does not permit as such, the court cannot allow full subsistence allowance amounting to full pay and allowances. Unless the respondent could substantiate that in cases of the nature pertaining to him, where for any lapse or delay, the employer cannot be found fault with at all, the High Court could not have passed such an order of the nature under challenge. We therefore, set aside the order of the High Court on this ground alone. The respondent will be allowed only 50% of the https://hcservices.ecourts.gov.in/hcservices/ salary towards his subsistence allowance, which seems to have been already paid to him." 8.In the light of the same, this court is unable to grant the prayer made by the petitioner. There is no infirmity or illegality in the order passed by the respondent. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vvk To The Secretary, Tamil Nadu Public Service Commission, Government Estate, Chennai-2 1 cc to Mr.M.Muthappan, Advocate, Sr.No.39807 1 cc to Government Pleader, Sr.No.40141 W.P.NO.16187 of 2011 TAM {CO} TP/21.7.2011. https://hcservices.ecourts.gov.in/hcservices/