P.Sathasivam, J.: Aggrieved by the Order of the Principal District Judge, Virudhunagar District, Srivilliputhur dated 31.5.2002, selecting the second respondent herein as Personal Assistant to the Principal District Judge, Virudhunagar District at Srivilliputhur, the petitioner-Sheristadar, Additional District Judge-cum-Chief Judicial Magistrate’s Court, Virudhunagar District, Srivilliputhur has filed the above writ petition. 2. According to the petitioner, on 1.7.1965, he was appointed as Junior Assistant in the Judicial Ministerial Service. He was promoted as Assistant in 1984 and further promoted as Deputy Nazir in the District Munsif Court, Aruppukottai and again as Head Clerk in the District Munsif Court, Aruppukottai. He was then promoted as Sheristadar in the Sub-Court, Virudhunagar in 1996 and thereafter promoted as Sherishtadar at District Court, Srivilluputhur in 1999 and working as Sheristadar in the Court of Additional District Judge, Srivilliputhur. The next higher post is the post of Personal Assistant to the Principal District Judge and a vacancy arose on 31.5.2002. The first respondent promoted the second respondent to the post of Personal Assistant and he assumed charge on that date. The petitioner aggrieved by the aforesaid order and having no other remedy has filed this writ petition seeking to quash the said order dated 31.5.2002 and also prayed for a direction to the first respondent to promote him to the post of Personal Assistant to Principal District Judge with effect from 31.5.2002 with all monetary and other consequential benefits. 3. The first respondent/Principal District Judge, Virudhunagar has filed a counter affidavit disputing various averments made in the affidavit. It is stated that based on a complaint dated 26.2.2002 accompanied by a D.O. letter of the High Court containing certain serious allegations against the petitioner, Sheristadar, Additional District Judge-cum-Chief Judicial Magistrate Court, Srivilliputtur alleging, that as the District President of Tamil Nadu Judicial Employees Association he was compulsorily collecting thousands of rupees for conducting a conference of the Association in the first week of March, 2002 from the members of the staff through the Chief Ministerial Officers of the Subordinate Courts in Virudhunagar District and also from the police and advocates attending Criminal Courts and also from big businessmen and no receipts were issued for the amounts collected. Another complaint against him is that the said Muthusamy without any valid orders from the High Court, got installation of an internal extension telephone in his room for his use and also received money from various persons on the assurance that they will be appointed as Copyist, Steno-typist, Examiner etc. Upon these complaints, preliminary enquiries were initiated by the Principal District Judge against the petitioner and they are pending. In the meantime, a vacancy for the post of Personal Assistant to Principal District Judge, Srivilliputtur had to be filled up consequent on the retirement on superannuation of the incumbent S.Hariraman, due to retire on 31.5.2002. The posts of Personal Assistants to the Distirct Judges do not come under Tamil Nadu Judicial Ministerial Service Rules, permission has to be based on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. Though among the two individuals, namely, the petitioner and second respondent, the petitioner is senior in view of the fact that the enquiries against the petitioner were pending at the appropriate time and taking note of the fact that the post of Personal Assistants to Principal District Judges are unique in nature and carries onerous responsibilities and he has to maintain absolute integrity at all times and devotion to duty, the first respondent after considering all the materials, merits etc., selected and promoted the second respondent herein as Personal Assistant to the Principal District Judge, Virudhunagar at Srivilliputtur by proceedings dated 31.5.2002. The said selection is purely based on merit and ability and in accordance with the Rules applicable to that post. There is no ground for interference. 4. In the light of the above pleadings, we have heard Mr.Vijay Narayan, learned senior counsel for the petitioner; Mr.D.Krishnakumar, learned Special Government Pleader for first respondent; and Mr.A.Sivaji, learned counsel for second respondent. 5. (i) Mr.Vijay Narayan, learned counsel appearing for the petitioner, would submit that in the absence of pendency of charge/charges against the petitioner, merely on the basis of preliminary enquiry into certain complaints, the claim of the petitioner cannot be rejected. He also contended that inasmuch as no charges have been framed, the petitioner ought to have been promoted to the next higher post. According to him, the first respondent has committed an error in taking note of un-communicated complaints said to have been made against the petitioner. He also contended that inasmuch as no charges have been framed, the petitioner ought to have been promoted to the next higher post. According to him, the first respondent has committed an error in taking note of un-communicated complaints said to have been made against the petitioner. The action of the first respondent in not considering the claim of the petitioner is arbitrary and discriminatory. (ii) On the other hand, Mr.D.Krishnakumar, learned Special Government Pleader, would contend that the psot of Personal Assistant to Principal District Judge is a selection post, and that there is a prima facie material emerged from the complaint to proceed against him under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. In such a circumstance, the first respondent considering the merit and ability of the second respondent and taking note of the importance of the post, has rightly selected him to the said post; accordingly there is no valid ground for interference. 6. We have heard the relevant materials and rival contentions. 7. The alleged complaint against the petitioner is that without any valid orders from the High Court, he got installation of internal telephone in his room for his use. The other allegation in the same complaint is that he had received Rs.10,000 from one Sekar for appointment as Copyist, Rs.3,000 from one Tmt. Selvavijaya for appointment as Steno-typist and Rs.6,000 from one Jehangir for promotion as Examiner. Mr.Vijay Narayan, learned senior counsel for the petitioner, would contend that without a formal charge, merely on the basis of preliminary enquiry or complaints, the claim of the petitioner cannot be ignored while filling up the post of Personal Assistant to Principal District Judge. It is not in dispute that the second respondent herein is junior to the petitioner. It is also not in dispute that the person to be appointed as Personal Assistant to Principal District Judge has to maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service as specified in Rule 20 of Tamil Nadu Government Servants Conduct Rules, 1973. It is also not in dispute that the person to be appointed as Personal Assistant to Principal District Judge has to maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service as specified in Rule 20 of Tamil Nadu Government Servants Conduct Rules, 1973. Mr.Vijay Narayan also submitted that in so far as the first allegation is concerned, namely, installation of telephone extension in his chamber the same has been approved by the High Court since the extension phone at the table of the Sheristadar would be helpful to the Judge as the Judge can be spared from unnecessary calls. As regard the allegations of corruption, the enquiring authority, namely, Additional District Judge-cum-Chief Judicial Magistrate ultimately found that the allegations are false and no action is necessary. In the light of these factual information, according to him, the first respondent ought to have considered the claim/request of the petitioner and selected him to the post of Personal Assistant to Principal District Judge. In this regard, he relied on the following decisions: (1) State of Madhya Pradesh v. Bani Singh, A.I.R. 1990 S.C. 1308; (2) Union of India v. K.V.Janakiraman, (1991)4 S.C.C. 109 . In State of Madhya Pradesh v. Bani Singh, A.I.R. 1990 S.C. 1308, the Supreme Court held that when the complaint is at the preliminary enquiry stage, such complaint should not have weighed with Screening Committee and deferring consideration of officer for promotion by Screening Committee is illegal. Before approaching the Supreme Court, the matter was agitated before the Tribunal and it was pointed out before the Tribunal that the Screening Committee seems to have been weighed in not selecting the respondent on the ground that there were some complaints about integrity and the decision will have to be deferred until the decision on such complaints. For this, the Tribunal pointed out that on these complaints not even a preliminary enquiry have been completed and that therefore they should not have weighed with the Screening Committee. Accepting the above stand of the Tribunal, the Surpeme Court has observed that: (para. 6) "6. Normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon, to his right to be considered. Accepting the above stand of the Tribunal, the Surpeme Court has observed that: (para. 6) "6. Normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon, to his right to be considered. If the departmental had reached the stage of framing of charges after a prima facie has been made out, the normal procedure followed as mentioned by the Tribunal was ‘sealed cover’ procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings. . . 8. In Union of India v. K.V.Janakiraman, (1991)4 S.C.C. 109 , the Supreme Court has held that: (para. 16) "16. . . . The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the chargees. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure." After saying, the Court held that: (para. 17) "17. .. the promotion etc., cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. 17) "17. .. the promotion etc., cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee." 9. The above decisions made it clear that:(i) mere pendency of preliminary enquiry is not a bar in considering the claim of the person for promotion; (ii) promotion can be withheld only in those cases where charge memo/charge-sheet was issued to the employee/person; (iii) pendency of contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon, to his right to be considered,; and (iv) if the disciplinary proceedings had not reached the stage of framing of charge after prima facie case is established, the consideration for the promotion to a higher or selection grade post cannot be withheld merely on the ground of pendency of such disciplinary proceedings. 10. In the light of the above principles, let us consider the claim of the writ petitioner. In the impugned order, while considering the claim of the petitioner as well as the second respondent, though it was found that among the two, the petitioner is senior, because of the pendency of the two complaints, he was not considered for the post of Personal Assistant to Principal District Judge. The first complaint relates to installation of extension of telephone on the table of the Sarishtadar without permission of the telephone department. It is the claim of the petitioner that the extention of the telephone was made at the oral direction of the then Additional District Judge-cum-Chief Judicial Magistrate, namely, Thiru P. Ramalingam. It is also his claim that the extension of phone is only for the benefit/use of the office and not for his personal use. In this regard, learned counsel for the petitioner very much relied on the repport of the High Court. It is seen that after the receipt of the report from the first respondent, the High Court has called for detailed remarks from the Additional District Judge-cum-Chief Judicial Magistrate, Srivilliputtur in its letter dated 12.7.2002, as to how the telephone extension was provided to the room of the Sheristadar District Judge submitted a detailed report on 26.7.2002 and requested the High Court to grant permission to keep the extension phone facility or pass any other suitable direction. After the report, the High Court in its letter No.2531-A/2002/D1 (Tel), dated 23.8.2002 permitted continuance of the extension phone as there is no additional expenditure is involved and it may also be helpful to avoid unnecessary phone calls that may be attended by the Chief Judicial Magistrate. In the light of the conclusion of the High Court based on the report of the first respondent, the first complaint against the petitioner has not been substantiated. 11. Coming to the complaint regarding corruption and acceptance of money for giving promotion and employment etc., to 3 persons, it is seen that the alleged complaints had already been reported to the Special Officer, Vigilance Cell, High Court, Madras by way of two separate petitions on different dates and the same have been sent to the then Additional District Judge-cum-Chief Judicial Magistrate, Srivilliputtur for necessary action. The Additional District Judge-cum-Chief Judicial Magistrate giving notice to the persons concerned, enquired the matter and submitted reports to the Special Officer to the effect that the allegations contained in the petition are false and no action is necessary in this regard. It must be noted that the Additional District Judge-cum-Chief Judicial Magistrate being the appointing authority gives promotion to certain categories of the members of staff of the Criminal Unit under his control and in this case the appointing authority himself had made a detailed enquiry in to the allegations made against the petitioner and submitted his report on 11.11.2001 stating that the allegations contained in the complaints are false and no further action is necessary. It is clear from the above that the complaints against the petitioner regarding mis-use of power or corruption/acceptance of amount from the staff members or individuals are also not substantiated. 12. By applying the above mentioned principles, we are of the view that at the relevant time of consideration though certain complaints had been made against the petitioner, they were only at the preliminary stage and without a “charge memo” the promotion cannot be rejected/withheld. It is also relevant to note that it is not the claim of the first respondent, namely, Principal District Judge that he had perused the personal file and confidentail reports of the petitioner and that he had already got certain entries of adverse remarks or de-merits or lack of ability. It is also relevant to note that it is not the claim of the first respondent, namely, Principal District Judge that he had perused the personal file and confidentail reports of the petitioner and that he had already got certain entries of adverse remarks or de-merits or lack of ability. The impugned order discloses that the first respondent has denied promotion to the petitioner merely on the ground that a preliminary enquiry on the two complaints against him is pending. As rightly claimed by the petitioner, he was expecting his promotiion after more than 30 years of service and denial of promotion by quoting pendency of preliminary enquiry under two complaints cannot be sustained. As stated earlier, promotion can be withheld only when if there is any punishment or any enquiry is pending on specific charges. As rightly pointed out, the first respondent has not stated in his order specifically how the merit and ability of the junior or superior than that of the senior. In the absence of any deficient entires in the record sheet of the persons concerned, it may be presumed that the merit and ability of the persons are equal; consequently the seniority should prevail in selecting persons to the higher post according to Rule 8 of the Tamil Nadu Judicial Ministerial Service Rules. As per Rule 8, seniority is to be considered only when merit and ability are approximately equal. The petitioner has got no adverse remarks during the tenure of his service, except the two complaints, the enquiry of which were at the preliminary stage only at the relevant time of consideration and in fact, he has been awarded with Indra Vikas Pathra for his unblemished service in the past. These material aspects have not been considered by the first respondent. 13. Under these circumstances, the impugned order of the first respondent dated 31.5.2002 is quashed and the petitioner is entitled to be considered to the post of Personal Assistant to the Principal District Judge with effect from 31.5.2002. The writ petition is allowed. No costs. Inasmuch as the petitioner is reported to have attained superannuation on 28.2.2005, he is entitled to all the monetary benefits as allowable to the post of Personal Assistant to the Principal District Judge. Learned counsel for the second respondent informed this Court that the second respondent is no more. The writ petition is allowed. No costs. Inasmuch as the petitioner is reported to have attained superannuation on 28.2.2005, he is entitled to all the monetary benefits as allowable to the post of Personal Assistant to the Principal District Judge. Learned counsel for the second respondent informed this Court that the second respondent is no more. Taking all these aspects, we make it clear that all the benefits given to the second respondent pursuant to the impugned order dated 31.5.2002 shall not be disturbed.