High Court · 2011

In the High Court of Judicature at MadrasDate :: 09..03..2011Coram ::The Hon'ble Mr. Justice V. DhanapalanWrit Petition No: 1316 of 20071. B. Srinivasan S/o. M. Balasubramanian 7/3, Patel Street New Perungalathur Chennai – 600 063.2. A. Sethuraman S/o. K. Appulingam B-2, Asish Tabasvi No: 9, Lock Street Kotturpuram Chennai – 600 085.... Petitioners-vs-1. The State of Tamil Nadu represented by The Secretary to Government Rural Development Department Fort St. George Chennai – 600 009.2. The Director of Rural Development Panagal Building, Saidapet, Chennai – 600 015. ... Respondents.. .. ..Writ petition under Article 226 of the Constitution of Indiapraying for issuance of a writ of mandamus directing the respondentsto sanction and disburse the increments to the petitioners countingtheir respective training period for probation and consequently togrant pensionary benefits by adding the training period as qualifyingservice and pay the arrears with other consequential service benefits. For petitioners : Mr. S.M. SubramaniamFor respondents : Mr. S. Gopinathan Additional Government Pleader .. .. .. https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is for issuance of a writ ofmandamus directing the respondents to sanction and disburse theincrements to the petitioners counting their respective trainingperiod for probation and consequently to grant pensionary benefits byadding the training period as qualifying service and pay the arrearswith other consequential service benefits and to pass any otherorders as this Hon'ble may deem fit. 2. The brief facts necessary for disposal of this writpetition are that both the petitioners had undergone training for aperiod of one and half years and they were paid stipend by theGovernment for such period. After their retirement from therespective posts, the 3rd respondent had submitted pension proposalswithout including the training period as qualifying service forpension purposes, even though the G.O. Ms. No: 610 P & A.R. Dated28.06.1982 was in force at the time of his retirement. According tothe petitioners when their pension proposals were submitted therewere sufficient rulings in force to add our training period withqualifying service i.e. G.O. Ms. No: 610 P & A.R. Dated 28.06.1982,Pension Rule No: 12 (2) and subsequently G.O. No: 85 R.D.P. E7 dated10.07.2002 none of which prohibits adding of training period withqualifying service for pension. It is also petitioners' case thatbased on the above said G.O. some persons who were similarly placedwere granted two increments on 30.07.1992 and these petitioners alonewere denied such increment as well as the pension without any validreason and hence, the present writ petition. 3. The learned counsel for the petitioners brought to thenotice of this Court an order passed by a learned Single Judge ofthis Court dated 22.03.2010 made in W.P. No: 10686 of 2008. Thatwas also a writ petition filed, by an employee of Rural DevelopmentDepartment, challenging the non inclusion of the training periodwhile fixing the qualifying service for pension purposes. 4. I have heard the learned counsel on either side andperused the materials available on record and the decision relied onby the counsel. As rightly contended by the learned counselappearing for the writ petitioners, the issue raised in this writpetition has already been dealt with in W.P. No: 10686 of 2008 whichwas disposed of on 22.03.2010. The relevant portion of the orderreads thus," 10. The crux of the question involved in this matteris to the effect that, whether the petitioner is entitledand eligible to count the two years training period i.e.,from June 1958 to May 1960, for the purpose of fixation ofpension and other benefits. The fact remains that the https://hcservices.ecourts.gov.in/hcservices/ Government passed an order in G.O.Ms.No.85, RuralDevelopment (E7) Department dated 10.7.2002 which isapplicable to all Rural Welfare Officers including those whohave already retired prior to 10.7.2002. The said G.O wassought to be clarified by the Government by its letterNo.34947/E7/2002-05, Rural Development Department, dated9.1.2003, restricting the applicability of G.O.Ms.No.85,Rural Development Department, dated 10.7.2002 only to thoseRural Welfare Officers retired from service on or after30.7.1992. The petitioner having retired on 31.10.1991,has been aggrieved against the said letter, earlier filed awrit petition in W.P.No.8178 of 2007 and this Court by Orderdated 19.7.2007 directed the first respondent to considerthe representation of the petitioner dated 20.6.2006 onmerits and pass orders in accordance with law. But thefirst respondent by simply placing reliance on theclarification letter dated 9.1.2003 denied the benefit tothe petitioner, ignoring and overlooking the Governmentorder in G.O.Ms.No.85, Rural Development Department dated10.7.2002, which is applicable to all Rural Welfare Officersincluding those who have retired prior to 10.7.2002. 11. It is needless to state the it is well settledprinciple that the Government order issued in the name ofthe Governor cannot be nullified or modified and cannot beoverriden by any subsequent clarification letter of theGovernment. This Court in a similar situation in K.Sampathvs. State of Tamil Nadu and others reported in 2007 WritL.R. 521, held hereunder:"9. The reason stated in the impugned order statingthat in view of the subsequent clarification issued by theGovernment by letter dated 4.10.2000 clarifyingG.O.Ms.No.118 dated 14.2.1996, is totally illegal since theGovernment order issued with the executive power of theGovernment in the name of the Governor cannot be clarifiedby a letter of the Secretary to the Government. Admittedlyno amendment to G.O.Ms.No.118 dated 14.2.1996 is issued andtherefore the Government order will prevail over thesubsequent Government letter.10.(a) In the decision reported in (2005) 10 SCC 244(R.P.Bhardwaj v. Union of India and others) the issue dealtwith was to whether a letter of the Central Ministry issuedby the Secretary will override the Office Memorandum and theHon'ble Supreme Court held that the Government letter cannotbe acted upon unless a new Office Memorandum is issued. Therelevant portion of para 8 is extracted hereunder, https://hcservices.ecourts.gov.in/hcservices/ ".... We have already notice that the OM dated 19.7.1989contained instructions to be noted and followed by allconcerned. That position was prevailing when the proposalby means of letter dated 23.11.1989 was mooted. It was notyet issued as OM for compliance by all concerned as was donein respect of the OM dated 19.7.1989. In our view, it wasstill at a premature stage and before being final so as tobe circulated by the Government of India for being followedby the authorities and the departments and all concerned, itseems to have been acted upon by the Service Commissionagainst the OM which was in operation. Even if any impliedapproval is inferred by the Public Service Commission, itwould be of no consequence since then too it would not beanything more than an approval of a proposal. An approvedproposal would not replace as OM issued by the Government ofIndia. Even after approval of the Government may not issueany OM. The Commission wrongly acted upon the mereproposal".(b) In an unreported decision in W.P.No.1713 of 1988,etc., bath by common order dated 7.11.1990, this Courtconsidered similar issues as to whether the Governmentletter will prevail over the Government Order or not andheld that the Government Order having been authenticated andexpressed to be taken in the name of the Governor, has thesanctity of an order issued under Article 166 of theConstitution of India and the Government letter issuedsubsequently cannot supersede the earlier Government Order.(c) This Court in the decision reported in 2004 WLR 805(P.Jeya v. Union of India & Others) considered a similarissue as to whether the Government letter will prevail overthe Government Order. The relevant portion of para 34 readsas follows,"In the given case, Government Order has been passed inexercise of power under Article 162 of the Constitution ofIndia and it is an executive order, which could be issuedonly in the name of the Governor. The executive orderissued in the name of the Governor cannot be modified byanother executive order, not being issued in the name of theGovernor....."12. The principle laid down in the decision citedsupra by placing reliance on the decision of the Hon'bleApex Court, is squarely applicable to the facts of theinstant case, as in this case also, the Government hassought to clarify the G.O.Ms.No.85, Rural DevelopmentDepartment dated 10.7.2002 by a letter dated 9.1.2003,restricting the applicability of the said G.O.Ms.No.85, https://hcservices.ecourts.gov.in/hcservices/ Rural Development Department dated 10.7.2002 only to thoseRural Welfare Officers retired from service on or after30.7.1992. Therefore, this Court has no hesitation to setaside the impugned order on this sole ground.13. It is also worthwhile to refer to the decision ofthe Hon'ble Apex Court in Col.B.J.Akkara (Retd.) vs.Government of India and Others reported in (2006) 11 SCC 709wherein the Hon'ble Apex Court has held hereunder:"20. The Principles relating to pension relevant to theissue are well settled. They are:(a) In regard to pensioners framing a class,computation of pension cannot be by different formulathereby applying an unequal treatment solely on the groundthat some retired earlier and some retired later. If theretiree is eligible for pension at the time of hisretirement and the relevant pension scheme is subsequentlyamended, he would become eligible to get enhanced pension asper the new formula of computation of pension from the datewhen the amendment takes effect. In such a situation, theadditional benefit under the amendment, made available tothe same class of pensioners cannot be denied to him on theground that he had retired prior to the date on which theaforesaid additional benefit was conferred".The well settled principle laid by the Hon'ble Apex Court inthe decision cited supra is squarely applicable to the factsof the instant case. 14. In view of the aforesaid reasons, this Court isconstrained to quash the Government LetterNo.34947/E7/2002-05 Rural Development Department, dated9.1.2003 and Government Letter No.28725/E4/2007, RuralDevelopment and Panchayat Raj Department dated 18-03-2008passed by the 1st respondent herein in so far as the same iscontrary to G.O. (Ms) No.85, Rural Development Department,dated 10.7.2002 and consequently direct the respondentsherein to forthwith re-fix the pension of the petitionerherein by counting the two years training period (from June1958 to May 1960) spent by him in the Rural ExtensionTraining Centre, Aduthurai as qualifying service for pensionand pay arrears of pension and other benefits. It is madeclear that the above said exercise shall be completed withina period of eight (8) weeks from the date of receipt of copyof this Order. " 5. Following the above decision cited supra and the law laiddown by the Apex Court, this writ petition is allowed. The https://hcservices.ecourts.gov.in/hcservices/ respondents are directed to re-fix the pension of the petitionersherein by counting the training period undergone by them asqualifying service for pension and pay arrears of pension and otherbenefits. Considering the age of the petitioners herein therespondents shall complete the above said exercise within a periodof eight (8) weeks from the date of receipt of a copy of this order.There shall be no orders as to the costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargpTo1. The Secretary to Government State of Tamilnadu Rural Development Department Fort St. George Chennai – 600 009.2. The Director of Rural Development Panagal Building, Saidapet, Chennai – 600 015. 1 cc To Mr.S.M.Subramanian, Advocate, SR.171541 cc To The Government Pleader, SR.17306W. P. No: 1316 of 2007NM(CO)sra 05/04/2011