The petitioner seeks writ of certiorarified mandamus to quash the proceedings of the third respondent in Na.Ka.20987/2002/A7 dated 28.6.2003 and direct the 3rd respondent to reinstate the petitioner in the post which he held and other appropriate directions.
2. The petitioner was appointed Village menial of Kalanjiyam village by the 3rd respondent in his proceedings dated 24.7.1974 on permanent basis. At the time of his appointment, there was no evidence produced regarding the petitioner's date of birth and the same was notified as 13.5.1947. By G.O.Ms.No.625 Revenue Department dated 6.7.1995, the Village Assistants have been brought under scale of pay as Government servants with effect from 1.6.1995. Consequent to that, the Government framed service rules in G.O.Ms.No.521 Revenue (Services VII) Department dated 17.6.1998 and as per the said G.O., every person appointed to the post of Village Assistant shall retire on attaining age of sixty years.
3. After the Village Assistants were brought in the scale of pay, the Village Assistants were asked to produce the birth certificates or certificates issued by the educational authorities such as S.S.L.C. Book or transfer certificate etc. In the present case, the petitioner has produced a transfer certificate issued by the Headmaster G.A.Nirmala English and Tamil Medium Primary Higher Secondary School, Erode, wherein his date of birth is stated as 2.6.1943 and accordingly date of birth of petitioner was entered as 2.6.1943 in the Service Register. The petitioner had also signed in column 13 at page 3 of Service Register as token of having known the said fact. It is stated that due to some private rivalry between the petitioner and another person, criminal case was registered against the petitioner in Crime No.212 of 2001 under
Sections 324 and
506 Part II of IPC on 24.4.2001. Since the petitioner was arrested in connection with the said criminal case, the petitioner was placed under suspension with effect from 24.4.2001 under Rule 17(2) of Tamil Nadu Civil Services (CCA) Rules. The petitioner filed O.A.No.5415 of 2001 before the Tamil Nadu Administrative Tribunal, Chennai challenging the suspension order and obtained interim stay in O.A.No.5415 of 2001 dated 24.8.2001. Pursuant to the said order, the petitioner was reinstated on 6.9.2001. While disposing of the said Original Application, by order dated 27.1.2002, the Tamil Nadu Administrative Tribunal has observed that the Department is at liberty to take action against the petitioner depending upon the result of the criminal case. Charges were framed against the petitioner under Section 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. During the pendency of the criminal case, the petitioner was due to retire on 30.6.2003. Since the Department action could not be finalised, by the impugned order, dated 28.6.2003, the petitioner was allowed to retire on 30.6.2003 without prejudice to the result of the criminal case.
4. The case of petitioner is that his date of birth is 13.5.1947 and while so at the time of opening service book the authority was not right in recording the date of birth of the petitioner as 2.6.1943. Further case of petitioner is that earlier date of birth of petitioner was entered in the service register as 13.5.1947. Once the date of birth of the petitioner has been entered as 13.5.1947, he is entitled to serve the Department till 13.5.2007 as the said date has been accepted and recorded in the Service Register and it should form conclusive evidence and while so the impugned order directing him to retire from service on the A.N. of 30.6.2003 is erroneous.
5. Learned counsel for the petitioner has submitted that without keeping in view that the date of birth of petitioner was originally recorded as 13.5.1947, the impugned order came to be passed. Learned counsel for petitioner would further submit that the extreme punishment of advance retirement would clearly show the malafide act of the 3rd respondent and therefore the impugned order cannot be sustained.
6. Heard Mr.Senthil Kumar, learned Additional Government pleader appearing for the respondents. As pointed out earlier, at the time when the Village Assistants were brought in the time scale of pay as full time government servants, service books were opened as in the case of regular Government servants. At the time of opening service books, Village Assistants including the petitioner were asked to produce the birth certificates or the certificates issued by the educational authorities such as record sheet, S.S.L.C. Book or transfer certificate. The petitioner is said to have produced a transfer certificate issued by the school G.A.Nirmala English and Tamil Medium Primary Higher Secondary School, Erode and the petitioner's date of birth was entered as 2.6.1943. The learned Additional Government Pleader has submitted that the petitioner has also signed in column 13 at page 3 of the Service Register as token of having known the fact. The entry of date of birth in the service register as 2.6.1943 remains unchallenged. While so, the petitioner is not right in contending that his date of birth ought to have been recorded as 13.5.1947 and he should have been allowed to continue in service till 31.5.1947. Such a contention of the petitioner cannot be countenanced.
7. In view of the pendency of criminal case and also framing of charges under section 17(a) of the Tamil Nadu Civil services (Discipline & Appeal) Rules, the petitioner was permitted to retire with effect from 30.6.2003 without prejudice to the disciplinary proceedings initiated. Learned counsel for the petitioner has submitted that the criminal case filed against the petitioner in C.C.No.338 of 2003 ended in acquittal by the judgment dated 22.7.2003 and therefore the departmental proceedings cannot be continued. The learned counsel has also brought to the notice of the Court that the charges against the petitioner were found not proved and therefore the Departmental enquiry cannot be proceeded with.
8. If the criminal case ended in acquittal, it is for the petitioner to make a representation to the 1st respondent and the 1st respondent shall consider the same in the light of the fact that the criminal case registered against the petitioner ended in acquittal and pass appropriate orders.
9. In the result, the Writ petition is disposed of giving liberty to the petitioner to make a representation to the 1st respondent by enclosing certified copy of the judgment of acquittal in the criminal case and also enclosing a copy of this order. On such representation being made by the petitioner, the first respondent shall consider the same and pass appropriate orders taking note of the acquittal of the criminal case preferably within a period of eight weeks from the date of receipt of the representation.
usk Copy to:
1. The District Collector, Erodle District
2. Revenue Divisional Officer Gobichettipalayam
3.Tashildar, Gobichettipalayam