IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27-8-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.15053 of 2008 and M.P.No.1 of 2008 W.P.No.15054 of 2008 and M.P.No.1 of 2008 S. Ganapathy ... Petitioner in both writ petitions Vs. 1. State of Tamil Nadu, rep.by its Secretary to Government, Home (Police) Department, Secretariat, Chennai - 9. 2. Director of Fire & Rescue Services, Egmore, Chennai - 8. ... Respondents in both writ petitions Prayer in W.P.No.15053/2008: This writ petition is filed under Article 226 of Constitution of India, seeking a writ of certiorarified mandamus, calling for the records pertaining to the order passed by the first respondent in its letter No.11972/Police-17/2007-12, Home Department, dated 22.5.2008 and quash the same and direct the respondents to promote the petitioenr as Deputy Director of Fire & Rescue Services with all the benefits from the date on which his juniors were promoted. Prayer in W.P.No.15054/2008: This writ petition is filed under Article 226 of Constitution of India, seeking a writ of certiorari, calling for the records pertaining to the order passed by the first respondent in its letter No.11972/Police- 17/2007-7, dated 7.2.2008 and quash the same. For Petitioner : Mr.C.Selvaraju, Senior Counsel, for Mr.S.Mani https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.A.Arumugam, Spl Government Pleader COMMON ORDER By consent of both sides, the writ petitions are taken up for final disposal. 2. Prayer in W.P.No.15053 of 2008 is to quash the order passed by the first respondent dated 22.5.2008 declining the request of the petitioner seeking promotion and to direct the respondents to promote the petitioner as Deputy Director of Fire & Rescue Services with all the benefits from the date on which his juniors were promoted. 3. Prayer in W.P.No.15054 of 2008 is to quash the charge memo dated 7.2.2008 issued by the first respondent. 4. The case of the petitioner is that he was appointed as Station Fire Officer in the year 1974, promoted as Assistant Divisional Fire Officer in the year 1987 and as Divisional Officer in the year 1996. The next avenue of promotion is to the post of Deputy Director of Fire and Rescue Services. The Government called for the list of eligible officers for preparing the temporary panel for promotion to the post of Deputy Director from the second respondent. According to the petitioner, his name was also recommended by the second respondent to the Government and his name was placed in Sl.No.1 in the list sent by the second respondent. The Government returned the said file and directed to send fresh names on the ground that charge memo was pending against the petitioner. The charge was framed against the petitioner on 7.2.2008 alleging that the petitioner allowed to retire one K.Ayyasamy, Driver-Mechanic on 28.2.2006 when case was pending against him before the Tribunal for Disciplinary Proceedings. According to the petitioner, no enquiry was pending before the Tribunal on the date when the said K.Ayyasamy attained the age of superannuation on 28.2.2006 and no records were available in the office stating that proceeding was pending against the said K.Ayyasamy before the Tribunal. According to the petitioner, as no intimation with regard to the pendency of proceedings before the Tribunal against the said K.Ayyasamy was received by him, petitioner cannot retain him in service after his date of superannuation in view of Fundamental Rule 56(9). The petitioner states that a complaint was lodged against one Deputy Director by name N.Noordeen, stating that he was receiving illegal gratification for effecting transfers or for giving https://hcservices.ecourts.gov.in/hcservices/ promotions to the subordinates through mediators and the said K.Ayyasamy was alleged to be one of the mediator. Discreet investigation seems to have been conducted and the Government by proceeding dated 13.3.2006 referred the matter to the Tribunal for Disciplinary Proceeding to frame charges, hold enquiry and send report. Since the said K.Ayyasamy attained the age of superannuation on 28.2.2006 i.e, prior to the date of referring the matter to the Tribunal for Disciplinary proceedings, petitioner was not informed of any adverse report against him and therefore he was allowed to retire on 28.2.2006. 5. Based on the said allegation, i.e, allowing the said K.Ayyasamy, Driver-Mechanic to retire from service on 28.2.2006, a charge memo was issued against the petitioner which reads as follows: "That Thiru S.Ganapathy, Divisional Officer, Fire and Rescue Services, Coimbatore-Nilgiris Division, while working as a Divisional Officer, Fire and Rescue Services, Coimbatore-Nilgiris, without verifying or seeking reports from the authorities concerned in respect of pending disciplinary cases/Tribunal enquiry or Vigilance and Anti-Corruption inquiries against Thiru K.Ayyasamy, Driver Mechanic 4168 issued orders of retirement in respect of the said Thiru K.Ayyasamy on 28.2.2006, while Tribunal enquiry against Thiru K.Ayyasamy is pending. Thereby you have failed to maintain absolute integrity and devotion to duty in Government Service and conducted yourself in a manner unbecoming of Government Servant by violating Rule 20 of Tamil Nadu Government Servants' Conduct Rules, 1973." The said charge memo is dated 7.2.2008. Subsequently the petitioner, having not been considered for promotion even under Rule 39(d) of the Tamil Nadu State and Subordinate Service Rules, he filed W.P.No.9233 of 2008 and this Court on 16.4.2008, directed to consider the request of the petitioner under Rule 39 (d). However, the first respondent rejected the request of the petitioner on 22.5.2008 stating that 17(b) charge is pending against the petitioner on the date of considertion and therefore the petitioners request is rejected as not feasible of compliance. The said order dated 22.5.2008 rejecting promotion is challenged in W.P.No.15053 of 2008 and the charge memo dated 7.2.2008 is challenged in W.P.No.15054 of 2008. https://hcservices.ecourts.gov.in/hcservices/ 6. The respondents filed counter affidvit by stating that the petitioner allowed the said K.Ayyasamy, Driver-Mechanic to retire on superannuation on 28.2.2006 without obtaining clearance from the Directorate of Vigilance and Anti Corruption as he was facing an enquiry. Petitioner was threfore issued a charge memo under Rule 17(b). When the list of persons eligible for the post of Deputy Director was prepared, petitioner's name was deferred due to pending enquiry of 17(b) charge. It is admitted in the counter affidavit that the second respondent in his letter dated 6.2.2008 placed the petitioner in Sl.No.1 for inclusion in the panel as no enquiry was pending on the crucial date i.e., 15.7.2007. However, the first respondent through letter dated 18.2.2008 requested to send a revised proposal excluding the name of the petitioner as he was served with charge memo dated 7.2.2008 on 13.2.2008 and due to the pendency of the said charge memo, petitioner's name was deferred by the Government. It is further stated that the charge memo was signed on 7.2.2008 and served on 13.2.2008. Hence the petitioner has no right to claim promotion even under Rule 39(d) and the charge memo issued against the petitioner is just and proper. 7. Mr.C.Selvaraju, learned Senior Counsel appearing for the petitioner submits that as per the Government Letter, P&AR Department, dated 14.7.2003, report is to be obtained from the Vigilance and Anti Corruption only for accepting the request of voluntary retirement and for normal retirement the department authorities need not get clearance from the Director of Vigilance and Anti Corruption and the departmental authority satisfy themselves that no such adverse remarks are pending against the employee. The said position is made clear in the letter of the Chief Secretary, addressed to the Government P&AR Department, dated 26.4.2005. Relying on the said letter, learned Senior Counsel submits that the charge framed against the petitioner is not maintainable since he is not required to obtain clearance from the DVAC since the said Ayyasamy was retired from service on superannuation and not on voluntary retirement. The learned Senior Counsel further submits that only due to the pendency of the above charge memo, petitionr is denied of promotion and therefore once the charge is quashed he is entitled to get consequential promotion with all benefits from the date of giving promotion to the petitioner's juniors. 8. Mr.A.Arumugam, learned Special Government Pleader appearing for the respondents on the basis of the averments made in the counter affidavit submits that the promotion given is under Rule 39(d) of the Tamil Nadu State and Subordinate Service Rules, wherein discretion is given to the competent authority to make promotion. Since charge was pending against the petitioner, https://hcservices.ecourts.gov.in/hcservices/ his name was deferred until finalisation of the disciplinary proceeding. Insofar as the charge memo is concerned, the said K.Ayyasamy was allowed to retire without getting clearance from the Vigilance and Anti Corruption Department. Hence the petitioner failed to maintain absolute integrity and devotion to duty in Government Service and violated Rule 20 of the Tamil Nadu Government Serivants Conduct Rules. 9. I have considered the rival submissions of the learned Senior Counsel appearing for the petitioner as well as the learned Special Government Pleader for the respondents. 10. The point in issue is whether any material was available on the file of the petitioner while granting permission to retire the said K.Ayyasamy on 28.2.2006 on his attaining the age of superannuation and whether the petitioner is required to obtain clearance from DVAC/Crime Branch C.I.D/S.B.C.I.D. 11. Admittedly no copy of proceeding nor intimation with regard to the pendency of enquiry before the Tribunal for Disciplinary Proceeding was received by the petitioner against the said K.Ayyasamy before 28.2.2006. Even according to the counter affidavit, on 13.3.2006 only the Tribunal for Disciplinary Proceeding framed charges against the said K.Ayyasamy i.e, after the date of retirement. Hence it is evident that no intimation was received by the petitioner prior to 13.3.2006 against the said K.Ayyasamy and therefore petitioner cannot be blamed for allowing the said Ayyasamy to retire on 28.2.2006. 12. The next question to be decided is as to whether the petitioner is required to get clearance from the Vigilance and Anti Corruption or from any other agency before permitting the said K.Ayyasamy to retire on superannuation. 13. In the letter issued by the P&AR Department in Letter No.50476/FR-III/2003-1, dated 14.7.2003 addressed to all the Directorate and Divisional Officers it is stated that before allowing a person to go on voluntary retirement, the head of the department should ensure whether the Government Servant satisfies all the statutory conditions stipulated under fundamental Rule 56 (3)(e). It is necessary to obtain a report from the DVAC to ensure that no vigilance enquiry is contempated or pending against the Government Servant. The appointing authority is therefore directed to ensure that no criminal case or prosecution is contemplated or pending against the government servant and after getting the clearance from DVAC/Crime Branch CID/SB CID, wherever necessary the appointing authority should act. https://hcservices.ecourts.gov.in/hcservices/ 14. Here in this case, the said K.Ayyasamy was allowed to retire on his attaining the age of superannuation and it is not the case of accepting his request for voluntary retirement. How the case of a person who is attaining superannuation should be considered before permitting him to retire from service is also clarified by the letter of the Government addressed by the Chief Secretary to Government, P&AR Department, Chennai-9, to all the Heads of Department in letter No.12679/FR-III/2005-2, dated 26.4.2005. In paragraph 4 of the said letter it is stated as follows: "4. After careful consideration the Government have decided to accept the suggestions of the Director of Vigilance and Anti Corruption and Additional Director General of Police (Intelligence) recommended by the Director General of Police in continuation of the instructions are issued in Government letter, second cited the following modified instructions are issued to all Heads of Departments and appoiniting authorities for guidance. (a) The department authorities need not get clearance from the Director of Vigilance and Anti-Corruption in respect of normal retirement on superannuation. The departmental authorities should satisfy themselves that no such adverse aspects are pendin against the Government servant. (b) The departmental authorities should maintain a register showing the details of officials against whom enquiries / investigation are pending in Director of Vigilance and Anti-Corruption. This register should be referred to before clearing the proposals of cases of retirement on superannuation. (c) It is enough if the appointing authority satisfies himself that no criminal case or prosecution is pending or contemplated against the Government Servant who opt for voluntary retirement. In cases where the departmental authorities consider that verification reports are absolutely necessary, such report may be obtained https://hcservices.ecourts.gov.in/hcservices/ directly from the concerned District Superintendent of Police / City Commissioner of Police and CBCID, as the case may be. The departmental authorities may obtain the verification report directly from the SBCID only in cases involving Special Branch point of view. However, as statutorily provided under FR.56(3)(e) it is mandatory on the part of the appointing authority that a report from DVAC should be obtained in cases of voluntary retirement in addition to satisfactory fulfilment of the other conditions laid down thereunder." From the above referred instructions given to the Heads of Department by the Government it is evident that the Department authorities need not get clearance from the Director of Vigilance and Anti Corruption or from other agencies in respect of normal retirement of superannuation and the department authorities should satisfy themselves that no such adverse aspects are pending against the Government Servants. Since no clearance from DVAC is required to be obtained in respect of normal retirement on superannuation, the charge framed against the petitioner that the petitioner has not obtained the report from the concerned authority in respect of pending disciplinary case/Tribunal for enquiry or Vigilance and Anti Corruption Wing, and allowed the said K.Ayyasamy to retire on 28.2.2006 while enquiry was pending is not maintainale, since the petitioner is not required to obtain such clearance. 15. Further as rightly contended by the learned Senior Counsel for the petitioner as well as the case of the respondent is that only on 13.3.2006 charge was framed againt the said K.Ayyasamy. Hence no charge was pending as on 28.2.2006 and contemplation of charge was also not intimated to the petitioner by any one including the vigilance and Anti Corruption or Tribunal for disciplinary proceeding. 16. In the light of the above finding, I am of the view that charge framed against the petitioner is not maintainable and the same is liable to be set aside and accordingly set aside. W.P.No.15054 of 2008 challenging the charge memo is thus allowed. 17. Insofar as W.P.No.15053 of 2008 seeking to quash the order declining promotion and for direction to promote the petitioner to the post of Deputy Director of Fire and Rescue Services is concerned, admittedly petitioner was denied of the https://hcservices.ecourts.gov.in/hcservices/ said promotion only on the basis of pendency of 17(b) charge framed on 7.2.2008. The said charge memo having been set aside, petitioner is entitled to get promotion as Deputy Director, Fire and Rescue Services from the date when his junior was given promotion. The respondents are directed to issue promotion order to the petitioner as Deputy Director of Fire and Rescue Services with effect from the date on which his juniors were given promotion, within a period of four weeks from the date of receipt of copy of this order, if there is no other legal impediment. The writ petitions are allowed with the above directions. No costs. Connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr To 1. The Secretary to Government, Home Govt. of Tamil Nadu(Police) Department, Secretariat, Chennai - 9. 2. The Director of Fire & Rescue Services, Egmore, Chennai - 8. +1cc to Mr.S.Mani, Advocate Sr 48391 RSM (CO) km/10.9. W.P.No.15053 & 15054/2008 https://hcservices.ecourts.gov.in/hcservices/