High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.18470 of 2009and M.P.NO.1 OF 2009Dr.M.Rajendran.. Petitioner Vs.1.The Secretary to Government, Government of Tamilnadu, Animal Husbandry, Dairying & Fisheries Department, Fort St. George, Chennai-600 009.2.Commissioner & Director of Animal Husbandry & Veterinary Services, Chennai-600 006. .. RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records and to quash thesuspension order issued by the first respondent to the petitionerby G.O.(D)No.200 dated 31.7.2009 and G.O.(D) No.201, dated31.7.2009 not permitting the petitioner to retire on 31.7.2009 andother reliefs.For Petitioner : Mr.T.D.K.GovindarajanFor Respondents : Mr.R.Neelakantan, GA ORDERThe petitioner was working as a Cleanition. He filed thewrit petition, seeking to challenge the order of the firstrespondent State Government made in G.O.(D) Nos.200 and 201, AnimalHusbandry, Dairying and Fisheries (AH1) Department, dated31.7.2009. 2.By the G.O.(D) No.200, the petitioner was placed undersuspension until further orders. By G.O.(D) No.201, the petitionerwas informed that since he was reaching the age of superannuationon 31.7.2009 and there was a complaint against him, it wasnecessary that he should not be permitted to retire on reaching theage of superannuation and he shall be retained in service. He wasalso to be paid an amount equivalent to pension, which would haveaccrued to him had he been retired from service. https://hcservices.ecourts.gov.in/hcservices/

3.In paragraph 10 of the affidavit filed in support of thewrit petition, the petitioner stated that the two G.Os. impugned inthe writ petition were served through a Fax message at 6.30 p.m.and it was served after the office hours. By the time it wasserved, the petitioner had already retired since the office hourswas over by 5.30 p.m. Later on, those orders were served on him bya special messenger around 10.00 p.m. The petitioner stated that hehad put in 27 years of service and there was no necessity tosuspend him on the last day of his employment. In any event, interms of FR 56(1)(c), the petitioner could not be served with aretention order that too after the close of the office hours. Inthe absence of any order being served during the working hours, thepetitioner is deemed to have retired from service. Therefore, hefiled the present writ petition.4.The petitioner, just 10 days before his date ofretirement, also filed a writ petition before this court beingW.P.No.7905 of 2009, seeking for restoration of his name in thepanel for the year 2004 for the post of Assistant Director ofAnimal Husbandry and also to place him as 32nd person in thepromotion list. This Court took up the matter at the admissionstage and held that the respondents should consider his case inaccordance with law. Even at that stage, on behalf of therespondent Government, a submission was made that the petitionerwas facing a vigilance case. 5.In paragraph 4 of the order, this court had recorded thesubmission of the learned Government Advocate as follows:"4.On notice, the learned GovernmentAdvocate appearing for the respondents, oninstructions, would submit that in respect ofcertain irregularities committed in thepurchase, rearing and distribution of HeiferCalves, the Director of Vigilance and Anti-Corruption has been requested to register acase. The Director of Vigilance and Anti-Corruption in their final report haverecommended to accord sanction to prosecuteagainst certain persons including thepetitioner during March, 2007. The Governmenthas also accorded sanction for the prosecutionof certain individuals including the petitioneras per the order dated 19.06.2009. Chargesunder 17(b) have been framed against thepetitioner by the Commissioner, AnimalHusbandry, Chennai in charge memo dated02.05.2009. Thus, the case of the petitionercould not be considered for promotion due tothe reasons cited above."6.On notice on this writ petition, the respondents havefiled a written instructions, dated 15.09.2009, stating that theState Government by G.O.Ms.No.59, Animal Husbandry, Dairying &Fisheries (AH1) Department, dated 19.0.2009 has accorded sanction https://hcservices.ecourts.gov.in/hcservices/ for prosecution against several officials of the departmentincluding the petitioner in connection with the allegation made andsubstantiated against them in the matter of purchasing, rearing anddistribution of Heifer Calves to Adi Dravida beneficiaries at theDistrict Livestock Farm, Hosur. 7.Therefore, the only question that has to be considered inthe present case is whether the contention that a fax copy of theimpugned order having served at 6.30 p.m. to the petitioner and theoriginal order served at 10.00 p.m. at his residence will help thepetitioner to sustain his contention that such an order was notvalid in the eye of law.8.The question raised here is no longer res integra.Normally, a person retires on completing 58 years or 60 years asthe case may be, on the day on which his date of birth falls.However, for administrative convenience, the Government servantsare allowed to retire on the last day of the month in which theirretirement falls. The petitioner cannot press into service that heis deemed to have retired on the afternoon of 31.7.2009. It must bestated that as per the provisions of General Clauses Act, a daywill end at 12.00 p.m.9.The Supreme Court had an occasion to consider thequestion which is diametrically opposite to one projected by thepetitioner in AIR 1990 SC 285 : 1989 Supp (2) SCC 486 (S. BANERJEEv. UNION OF INDIA). In that case, an Additional Registrar of thesupreme Court was to retire on 31.3.1987 and he sought to go onvoluntarily retirement from service. By an officer order, dated6.12.1985, it was intimated that the Honourable Chief Justice ofIndia had permitted him to retire voluntarily from the service ofthe Registry of the Supreme Court with effect from the forenoon ofJanuary 1, 1986. The question arose was whether he was eligible toget benefits as per the recommendations made by the VI Central PayCommission which was ordered to be implemented for employees whoretired from service on 1.1.1986 onwards. 10.Though it was contended by the Government that the saidBanerjee would have retired on 31.12.1985, that contention wasrejected by the Supreme Court in paragraph 6 of the judgment, whichis as follows:"6. . . . But, in our opinion, thathas no bearing on the question as to the dateof retirement. Can it be said that thepetitioner retired on 31-12-1985 ? The answermust be in the negative. Indeed, Mr Anil DevSingh, learned counsel appearing on behalf ofthe respondents, frankly conceded that thepetitioner could not be said to have retired on31-12-1985. It is also not the case of therespondents that the petitioner had retiredfrom the service of this Court on 31-12-1985.Then it must be held that the petitioner hadretired with effect from 1-1-1986 and that is https://hcservices.ecourts.gov.in/hcservices/ also the order of this Court dated 6-12-1985.It may be that the petitioner had retired witheffect from the forenoon of 1-1-1986 as per thesaid order of this Court, that is to say, assoon as 1-1-1986 had commenced the petitionerretired. But, nevertheless, it has to be saidthat the petitioner had retired on 1-1-1986 andnot on 31-12-1985. In the circumstances, thepetitioner comes within the purview of para17.3 of the recommendations of the PayCommission."11.Subsequently, the Supreme Court had an occasion toconsider another case of a School Teacher in (2008)2 SCC 639(ACHHAIBAR MAURYA v. STATE OF UTTAR PRADESH AND OTHERS). In thatcase, an Assistant teacher in a primary school was to retire on thelast day of the month (i.e. 30.6.2003) in which she had attainedthe age of 60 years. But if retirement falls during the period fromJuly 1 to June 30, such teachers were permitted to continue inservice till the end of that academic year. The teacher in thatcase contended that she will retire from service only on 1.7.2003and that she should be given the benefit of reemployment. TheSupreme Court rejected the said contention made by the teacher. Inparagraphs 8, 10 and 11 of the judgment, the Supreme Court observedas follows:"8. As the appellant was born on 1-7-1943, he would retire on 30-6-2003. The questionas to whether he would obtain the benefit ofextended period of service up to 30th June andthe next year will depend upon the situation asto whether the teacher retires on or after 1stJuly or not.. . .10. A benefit of getting an extendedperiod of service must be conferred by a statute.The legislature is entitled to fix a cut-offdate. A cut-off date fixed by a statute may notbe struck down unless it is held to be arbitrary.What would, therefore, be an employee’s lastworking date would depend on the wordings of theRules. It may seem unfortunate as some people maymiss the extended period of service by a day, buttherefor a valid provision may not be held to beinvalid on the touchstone of Articles 14 or 16 ofthe Constitution of India. A statute cannot bedeclared unconstitutional for conferring benefitto a section of the people. We, therefore, do notagree with the view taken in Khan Chandra Madhu.11. In S. Banerjee v. Union of India,whereupon reliance has been placed, the factsituation obtaining was completely different. Inthat case, the appellant filed an application forvoluntary retirement which was accepted from the https://hcservices.ecourts.gov.in/hcservices/ forenoon of 1-1-1986. In that view of the matter,he was found to be entitled to the benefit ofPara 17.3 of the Recommendations of the PayCommission."12.In those two cases, it was contended that a personretires from service on the next day after his date of birth andthat he will have the benefits which are granted with effect fromthat date. But in the present case, the petitioner wanted tocontend that he got retired at 5.30 p.m. itself at the closing ofoffice hours and any order served after those hours will have noeffect. This contention cannot be accepted.13.Even otherwise it is immaterial that the order must beserved on that date of retirement itself. The Supreme Court inNational Textile Corpn. (M.P.) Ltd. v. M.R. Jadhav reported in(2008) 7 SCC 29 has categorically stated that communication of anorder of suspension is not necessary if the order goes out ofcontrol of the appointing authority. The following passage found inparagraphs 23 and 24 may be usefully extracted below:23. In MCD v. Qimat Rai Gupta9 this Court opined:(SCC p.319, para 27)“27. An order passed by a competent authoritydismissing a government servant from servicesrequires communication thereof as has beenheld in State of Punjab v. Amar Singh Harika6but an order placing a government servant onsuspension does not require communication ofthat order. (See State of Punjab v. KhemiRam.)”24. Therefore, there cannot be any doubt whatsoeverthat communication of the acceptance of offer wasnecessary. An internal noting does not constitute acommunication. Even in a case of order ofsuspension, only when the case goes out of thecontrol of the appropriate authority, actualcommunication may not be necessary. 14.In the light of the above, this writ petition shallstand dismissed. However, there shall be no order as to costs.Consequently, connected MP also stands dismissed.vvkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government, Government of Tamilnadu, Animal Husbandry, Dairying & Fisheries Department, Fort St. George, Chennai-600 009.2.The Commissioner & Director of Animal Husbandry & Veterinary Services, Chennai-600 006.PRE DELIVERY ORDER INW.P.NO.18470 OF 2009gr(co)ar/5.11.2009.