(1.) HEARD the learned counsel for the parties. This appeal has been filed against an order dated 28.3.2008 passed by a learned Judge of the writ Court, whereby the writ petitions filed by the appellant were dismissed. Two writ petitions were filed before the learned single Judge, being W.P. Nos. 7573 and 7574 of 2008, the former challenging the legality of Rule 56(1) of the Tamil Nadu Government Fundamental Rules and the latter seeking a direction to the respondents not to grant any extension of service to the second respondent. Writ Petition No. 7574 of 2008 was dismissed, but no appeal has been filed against the dismissal of the same. The other writ petition, being W.P.No.7573 of 2008, in which the legality of the rule was challenged, was also dismissed, but against the said order of dismissal, the present appeal has been filed.
(2.) IN order to appreciate the controversy in the matter, this Court thinks that Rule 56(1) of the Fundamental Rules of the Tamil Nadu Government should be set out and it is accordingly set out hereinbelow:'.56(1) Retirement on 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 1.1.1993, 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 retire from service on attaining the age of sixty years.[G.O.Ms.No.365 Personnel and Administrative Reforms (FR.IV) Department, dated 4.10.1996 with effect from 1.1.1993.]Explanation I-When a Government servant is required to retire, revert or cease to be on leave on attaining a specific age, the day on which he attains that age is reckoned as a non-working day and the Government servant shall retire, revert or cease the be on leave, with effect on and from that day.Explanation II.- The grant under Rule 86 or corresponding other rules of leave extending beyond the date on which a Government servant must retire or beyond the date upto which a Government servant has been permitted to remain in service shall not be treated as sanctioning an extension of service for the purpose of Pensionary or Contributory Provident Fund benefits or retention of lien. The Government servant shall, for purpose of pensionary benefits be deemed to have retired from service on the date of retirement or on the expiry of the extension of service, if any, and shall become eligible to all pensionary benefits from the date of retirement or from the day following the date of termination of extension of service, as the case may be.(b) Omitted.(c) Notwithstanding anything contained in clause (a), a Government servant who is under suspension,(i) on a charge of misconduct or(ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending or(iii) against whom an enquiry into grave charges is contemplated or is pending or(iv) against whom a complaint of criminal offence is under investigation or trial, shall not be permitted by the appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordinate Service (Discipline and Appeal) Rules, as the case may be, in -respect of item (iv) above is concluded and a final order passed thereon by the competent authority or, by any higher authority.Explanation-For the purpose of this clause, the expression -criminal misconduct- shall have the same meaning as in Section 13 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988).INstruction under Rule 56(1)(c).-Whether a Government servant referred to in clause (c) is fully exonerated or not he shall be considered to have been on extension of service for the period front the date of retirement to the date of termination of the proceedings. During such an extension of service, the service rights which have accrued to the Government servant shall freeze at the level reached on the date of retirement and the salary during that period shall not exceed the pension which has accrued to the Government servant on that date.'. 2. The main grievance of the appellant is that there is no guideline given in Fundamental Rule 56(1) on the basis of which the executive authority should exercise its power of granting extension of service. Learned counsel or the appellant submits that a mere guideline for extension of service upto 60 years in respect of some of the employees on public grounds is not a valid guideline. This Court finds that for any extension of service, the order extending service must be a reasoned order and the public grounds on which such extension is made are to be recorded in writing. It has also been provided under the rule that the said extension is for a limited period of two years, i.e. only upto 62 years and not beyond that. Considering all these facts, we are of the opinion that sufficient guidelines have been provided in the rule itself. Learned counsel submits that public ground is not a guideline. We are of the view that public ground certainly fulfills a guideline inasmuch as the authority extending the service of an employee cannot act on its mere ipse dixit. It has to act on some reasons which must have a public element and which are relevant in the matters of public service. The further requirement is that such extension must be on the basis of a reasoned order and must be in writing.