The central legal point established in the judgment is that a government servant's entitlement to encashment of leave salary and contribution to Provident Fund cannot be denied, even in the case of dismissal or termination.

JUDGMENT :

Subramonium Prasad, J.

Prayer: Appeal filed under Clause 15 of the Letter Patent against the order, dated 20/2/2019, passed in W.P.No.16202 of 2008.

1. Instant writ appeal is directed against the order, dated 20/2/2019, passed in W.P.No.16202 of 2008.

2. Facts in brief are as follows:-

(a) Appellant is the State of Tamil Nadu. Respondent entered into the service of the appellant, as Junior Assistant through selection conducted by Tamil Nadu Public Service Commission. By passage of time, he was promoted as District Revenue Officer, on 7/8/1998.

(b) When respondent was serving as Tahsildar, in Dharmapuri Taluk, from September 1993 to August 1994, the Government of India, released funds for providing housing and business loans to Sri Lankan repatriates. During an enquiry, it was found that a number of persons claimed the benefit of the scheme on the basis of forged documents.

(c) A criminal case was registered in Crime No.8 of 2000, on the file of Vigilance & Anti-Corruption Department of Dharmapuri District, arraying the petitioner as an accused.

(d) A charge sheet has been filed before Chief Judicial Magistrate/Special Judge, Krishnagiri District, and has been taken on file in C.C.No.123/2006. Respondent was in continuous suspension.

(e) The petitioner was due for superannuation, on 30/6/2008. Since the criminal case was pending, the respondent was not permitted to retire.

(f) Respondent has filed W.P.No.16202 of 2008, praying to quash the records in connection with the impugned order, passed in G.O.(2D) No.53, Public (Special -A) Department, passed by the Chief Secretary to Government, Public (Special A) Department, Fort St. George, dated 30/6/2008 by which the writ petitioner who was in suspension was not permitted to retire and direct the appellant to superannuate the respondent from service.

3. In the writ petition, appellant has filed a detailed counter, bringing out various reasons as to why suspension of the respondent cannot be revoked, before culmination of the criminal case.

4. The learned Single Judge, by the order impugned herein has directed the appellant to pay the encashment of Earned leave and unearned leave on private affairs, Petitioner's Contribution to General Provident Fund and Family Benefit Fund, in the light of the order passed by a Division Bench of this Court, in W.A.No.458 of 2016, dated 13/4/2016 (The District Collector, Tiruvallur District, Thiruvallur Vs. T.L.Nageswara Rao).

5. The order of the Single Judge been challenged by the State in the instant writ appeal.

6. Heard Mr.V.Jayaprakash Narayanan, learned Government Pleader.

7. Mr.V.Jayaprakash Narayanan, learned Government Pleader, places reliance on Rule 56 (1) of the Fundamental Rules of the Tamil Nadu Government, Rule 7 (1) of Annexure III of Tamil Nadu Leave Rules, 1933 and Rule 21 of the Tamil Nadu Pension Rules, 1978.

8. Rule 56 (1) of the Fundamental Rules of the Tamil Nadu Government, is extracted hereunder:-

Retirement of Superannuation:- (a) Every Government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances:

Provided that this clause shall not apply to Government servants who are treated as in superior service for the purpose of these rules but as in the Tamil Nadu Basic Service for the purpose of pension. Such Government servants as well as all basic servants shall retire on attaining the age of sixty years:

Provided further that on and from the 1st January 1993, a District Judge, Chief Judicial Magistrate, Subordinate Judge or District Munsif-cum-Judicial Magistrate, who, in the opinion of the High Court, Madras, has potential for continued useful service beyond the age of fifty-eight years, shall reti