IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.15932 of 2006 (O.A.No.6509 of 1995) V.Balasubramanian ... Petitioner Versus 1. The Secretary to Government, State of Tamil Nadu, Agriculture Department, Secretariat, Madras-9. 2. The Secretary to Government, Finance Department, Madras-9. 3. The Director of Agriculture, Chepauk, Madras-5. ... Respondents This petition came to be numbered by transfer of O.A.No.6509 of 1999 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorari to call for the records pertaining to the proceedings No.9120/AA1/94-4, dated 19.04.1994, set aside the said order as void and to direct the respondents to give pensionary benefits to the petitioner from the date of his superannuation. For Petitioner : Mr.N.Maninarayanan For Respondents : Mr.S.Gopinathan, Addl. Government Pleader O R D E R The petitioner has challenged the order, dated 19.10.1994 of the first respondent, denying pro-rata pension and consequently prayed for a direction to the respondents to give pensionary benefits to him from the date of his superannuation. 2. Facts of the case are as follows: The petitioner entered the Tamil Nadu Government service in Agricultural Department on 16.06.1950 on temporary basis and his probation was declared on 12.11.1954. While he was working as Assistant Oil-seed Specialist, he was deputed to Fertiliser and Chemicals, Travancore Ltd., (shortly called as FACT), a Central Government Undertaking for two years on 13.01.1967. On 28.02.1968, he resigned his service from the Government of Tamil Nadu, and was permanently absorbed in FACT. After serving for a considerable period, on 09.01.1985, he resigned from FACT. According to the petitioner, while resignation from the Agricultural Department of the government, he had requested the government to grant proportionate pension and gratuity, for 17 years of service rendered in Agricultural Department. On the recommendation of the Director of Agriculture the government, in G.O.Ms.No.3480, Agricultural Department, dated 30.11.1968, issued orders, granting pensionary benefits to the petitioner, with the concurrence of the Finance Department in its letter in U.O.115230/E1/68/I, dated 26.11.1968. Therefore, the petitioner made an application, dated 02.07.1993, to pay pro-rata pension and the Director of Agriculture, Madras in his letter dated 08.07.1993, has sent the proposals to the Accountant General, Madras, for sanctioning pension. Considering the fact that the petitioner had resigned from the FACT, the Accountant General, Madras in his proceedings dated 8.12.2003 sought for clarification from the government. Instead of sending a reply to the Accountant General's Office, the first respondent, by order dated 19.10.1994, rejected the case of the petitioner for grant of pensionary benefits on the ground that the petitioner had already resigned from FACT, before attaining the age of superannuation and therefore not entitled to pro-rata pension. The petitioner's request for reconsideration of the matter was also rejected by the Government on 15.05.1995. Being aggrieved by the said orders, the petitioner has filed Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as present Writ Petition. 3. The respondents in their counter affidavit have submitted that the petitioner was temporarily promoted as Assistant Oilseed Specialist in Madras Agricultural Service with effect from 21.10.1962 and was deputed to M/s.FACT Ltd., on 10.01.1967. He tendered his resignation from Agriculture Department to take up his assignment in M/s.FACT Ltd. Accordingly, his resignation was accepted by the Government with effect from 28.02.1968, as per G.O.Ms.No.2839, Agriculture, dated 26.09.1968. Thereafter, by order in G.O.Ms.No.3480, Agriculture, dated 30.11.1968, the petitioner was allowed pro-rata pension and gratuity benefits in terms of the orders issued in G.O.Ms.No.742, Finance, dated 30.06.1966. The petitioner resigned from M/s.FACT Ltd., on 09.01.1985. On receipt of the representation made by the petitioner, the Director of Agriculture, in his letter dated 08.07.1993, has sent the pension proposals to the Accountant General, Madras who sought for clarifications, in his letter dated 08.12.1993. The Government, on examination of the matter, observed that since the petitioner had resigned from the absorbed Organisation ie., FACT Ltd., before attaining the age of superannuation, he is not eligible for pro-rata pension as ordered in G.O.Ms.No.3480, Agriculture, dated 30.11.1968. The respondents have further contended that as per para (1)(iv) of the Government of India Lr.No.F.24(12)/FV/66, dated 16.10.1967, as adopted by the State Government in G.O.Ms.No.1035, Finance, dated 8.11.1967, the action of the Government in rejecting the pro-rata pension to the petitioner is in order. 4. It is the further contention of the respondents that as per G.O.Ms.No.1035, Finance, dated 08.11.1967, the petitioner is entitled to pro-rata pension only if he had served in the Organisation, FACT Ltd., until he attained the age of superannuation. The respondents have further submitted that there was no pension scheme in the absorbed organisation, FACT Ltd., and therefore, the question of payment of pro-rata pension by the Government does not arise. According to them, as per G.O.Ms.No.1035, Finance, dated 08.11.1967, pro-rata pension would be admissible and payable to a government servant, in respect of the service rendered under the Government, only on retirement from the absorbed organisation and since the petitioner had resigned from the absorbed organisation, he is not eligible for pension. 5. Assailing the orders of the first respondent, Mr.Maninarayanan, learned counsel for the petitioner submitted that when the petitioner resigned from the Agricultural Department and absorbed in FACT, resignation was accepted without imposing any condition, regarding pro-rata of pension. Having issued the order in G.O.Ms.No.3480, Agricultural Department, dated 30.11.1968, granting pro-rata pensionary benefits, the respondents are bound by their commitment and that they are estopped from denying pensionary benefits. 6. Referring to clause 9 of the order of deputation passed by the Director of Agriculture, Madras dated 13.01.1967, learned counsel for the petitioner submitted that the foreign employer, viz., FACT was directed by the Government to pay contributions towards leave salary and pension, from the date of relieving of the officer from the service of the government, till he rejoins the Agricultural Department. Accordingly when the contributions under the above heads were by FACT Ltd., for two years, the order dated 13.01.1967 passed by the Director of Agriculture, Madras, agreeing to pay pensionary benefits, binds the parties and therefore respondents 1 and 3 are bound to pay pro-rata pension to the petitioner. 7. Referring to Rule 9 of the Tamil Nadu Pension Rules, 1978, learned counsel for the petitioner further submitted that once the pensionary benefits are already sanctioned, the Government can withhold or withdraw the pension only under the specific circumstances enumerated in the above said rule, such as, guilty of grave misconduct or negligence during the period of service etc., and in the absence of any such condition, the respondents have no jurisdiction to withdraw the pensionary benefits granted as per G.O.Ms.No.3480, Agricultural Department, dated 30.11.1968. 8. Heard the learned Additional Government Pleader, who reiterated the averments made in the counter affidavit and submitted that the petitioner is not eligible to pro-rata pension, as per G.O.Ms.No.3480, Agriculture, dated 30.11.1968. He further submitted that the petitioner had resigned from FACT Ltd., before attaining the age of superannuation and therefore he is not entitled to pension as per the government of India's decision as adopted in G.O.Ms.No.1035, Finance, Dated 8.11.1967. On the question withdrawing the sanction, he submitted that the government is empowered to examine afresh and issue appropriate orders and therefore, there is nothing wrong in the impugned order warranting interference. 9. Before adverting the facts of this case, it is relevant to extract the orders passed by the Government in G.O.Ms.No.3480, Agriculture, dated 30.11.1968 and G.O.Ms.No.1035, Finance, dated 8.11.1967 for effective adjudication of the dispute and to find out whether he is eligible to get pro- rata pension for the service rendeed by him in Agricultural department, before absorption in FACT Ltd. 10. G.O.Ms.No.3480, Agriculture Department, dated 30.11.1968 reads as follows: "Thiru.V.Balasubramaniam, Assistant Oilseeds Specialist was on temporary service in category 6 of the Madras Agricultural Service from 21.10.1962 with break from 23.11.1964 to 17.02.1965. He was confirmed in the Madras Agricultural Subordinate Service with effect from 02.10.1961. He was on deputation with the Fertilisers and Chemicals, Travancore Ltd., with effect from 10.01.1967. The Officer tendered his resignation from the Agriculture Department with effect from 28.02.1968. The Officer while submitting his resignation, has also requested the Government to grant him proportionate pension and gratuity for the services he had rendered with the Agriculture Department. The Director of Agriculture has recommended that the request of the officer for pensionary benefits admissible under G.O.Ms.No.742, Finance, dated 30.06.1966 may be granted. The Government after careful examination, accept the recommendation of the Director of Agriculture, and accordingly grant the officer pensionary and gratuity benefits in terms of the orders in G.O.Ms.No.742, Finance, dated 30.06.1966. 2. This order issues with the concurrence of Finance Department vide its G.O.No.115230/E1/68-1, dated 26.11.1968." 11. G.O.Ms.No.1035, Finance Department, dated 8.11.1967 deals with the grant of pension and retirement benefits in respect of permanent transfer of Government servants to Government companies/Corporation and it reads as follows: "ORDER: Recorded. 2. The Government of India's decision in their Office Memorandum cited shall apply to the Government servants under the rules making control of this Government also. (BY ORDER OF THE GOVERNOR) C.A.DAVIES, Deputy Secretary to Government To The Accountant General, Madras-18. The Departments of Secretariat, All Heads of Departments etc. Copy of letter from the Government of India, Ministry of Finance Department of Expenditure No.F.24(12) EV/66, dated 16.06.67, sent to the state government, communicating the government of India's decision regarding payment of retirement benefits is extracted. ----- Sub: Permanent transfer of Government servants to Government companies/ Corporations  Grant of retirement benefits. ----- The undersigned is directed to say that the retirement benefits granted in terms of this Ministry's Office Memorandum No.F2.(23) EV(A) 60, dated 10.11.1960 to a Government servant who is permanently absorbed in a public sector undertaking have been reviewed and the President is pleased to sanction the following revised terms in respect of those absorbed hereafter:- (i) A permanent Government servant on absorption in a public undertaking will be eligible for pro- rate pension and Death-cum-Retirement Gratuity based on the length of his qualifying service under Government will the date of absorbtion. The pension will be calculated on the basis of average emoluments for three years preceding the date of absorbtion and the Death-cum-Retirement Gratuity on the basis of the emoluments immediately before absorbtion. In cases where an officer at the time of absorbtion has less than 10 years' service and is not entitled to pension, the question of proportionate pension will not arise, he will only be eligible to proportionate service gratuity in lieu of pension and, to Death-cum-Retirement Gratuity basis on length of service. (ii) The amounts of pension/gratuity and the Death-cum-Retirement Gratuity would be currently worked out and will be intimated to the Officer as well as to the undertaking as and when an officer is absorbed. (iii) The pro-rata pension, gratuity etc., admissible in respect of the service rendered under the Government would be disbursable only from the date, the Government servant would have normally superannuated and he continued in Government Service. (iv) Every Officer will exercise an option, within six months of his absorbtion for either of the alternatives, indicated below: (a) Receiving the monthly pension and Death-cum-Retirement Gratuity already worked out, under the usual Government arrangements, (b) Receiving the gratuity and a lump sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date of superannuation. Where an officer retires from the service of a Public where no option is exercised within the prescribed period, the Officer will automatically be governed by alternative (b) above. Option once exercised in writing and communicated by the officer concerned to the undertaking. (v) Where an officer retires from the service of a public undertaking before his date of superannuation, the proportionate pension and D.C.R.G will not be paid to him till such time as he actually attins the age of superannuation. This will be the case irrespective of the option exercised by him. (vi) Cases of resignation from a public undertaking will for the purpose of these orders be treated as resignation from Government service, entailing forfeiture of the earlier service under Government and loss of the pensionary benefits under these orders, (vii) For the period of service rendered in a public undertaking the absorbed officers will be entitled to ill the benefits admissible to other corresponding employees of the organisation. (viii) The total gratuity admissible in respect of the service rendered under the Government and that under the Public Undertaking should not exceed the amount that would have been admissible had the officer continued in Government service and retired on the same pay which he drew on retirement from the public undertaking. (ix) Government would have no liability for family pension in such cases. (x) Any further liberalisation of pension rules decided upon by Government after the permanent absorbtion of a Government servant in a public undertaking would not be extended to him. (xi) In cases where an officer has opted to receive pension as at (iv) (a) above but wishes to commute a portion of the pension, such commutation will be regulated in accordance with the Government rules in force at the time of his superannuation. 2. The above decisions will apply only where the permanent transfer from Government service to a public undertaking is in the public interest. In all other cases, Government will not accept liability to pay any retirement benefits for the period of service rendered by the officer before his transfer." 12. By order dated 05.01.1967, the Director of Agriculture, Madras, has lent the service of the petitioner to Fertilisers and Chemicals Travancore Ltd., Eloor, Kerala, on foreign service for a period of two years from the date of relieve, subject to the conditions contained therein. As per Clause 9 of the order of deputation, the foreign employer shall pay the Government contributions towards leave salary and pension from the date of relieve of the officer from the service of the Government till he rejoins it, provisionally at the rates which would be specified later and subject to the alterations to be made from time to time by the Accountant General, Madras. 13. Admitted case of both parties is that the petitioner has submitted a letter dated 28.02.1968, resigning the post held by him in the Agriculture Department as he had decided to become a regular employee of the FACT Ltd. On the recommendation of the Director of Agriculture Department, Madras, the Government have issued orders in G.O.Ms.No.2839, Agriculture Department, dated 26.08.1968, accepting the resignation of the petitioner. The decision of the Government was communicated to the petitioner, by letter dated 09.10.1968 of the Director of the Agriculture Department. Subsequently, the Government have passed yet another order in G.O.Ms.No.3480, Agriculture Department, dated 30.11.1968, granting pensionary as well as gratuity benefits to the petitioner in terms of G.O.Ms.No.742, Finance, dated 30.06.1966 with the concurrence of the Finance Department. After resignation from Agricultural Department, the petitioner was working in FACT till he resigned on 09.01.1985, during which time, pension scheme was not available in FACT and therefore, he was not granted any pension. 14. Enclosures reveal that when the petitioner sought for pension, on the basis of G.O.Ms.No.3480, Agricultural Department, dated 30.11.1968, proposals were sent from the Office of the Director of Agriculture, Madras to the Accountant General, Madras. By way of reply, dated 08.07.1993, the Accountant General, Madras has informed the Director of Agriculture that pro-rata pensionary benefits in the case of Central Government Employees absorbed in Autonomous organisations, will not be available to those, who had resigned from such organisation and in such cases, resignation will entail forfeiture of past service resulting in loss of pensionary benefits. Since the petitioner had resigned the post held by him in FACT Ltd., on 09.01.1985 before attaining the age of superannuation on 31.01.1986, the Accountant General, Madras has requested the Director of Agriculture, Madras to clarify whether pro-rata pension and pro-rata gratuity can be granted to the petitioner based on the orders issued in G.O.Ms.No.3480, Agriculture Department, dated 30.11.1968. In view of the doubt raised by the Accountant General, the Director of Agriculture, Madras, addressed a letter dated 15.02.1994 to the Government to clarify, whether the petitioner is eligible for pro-rata pensionary benefits, as already sanctioned by the Government in G.O.Ms.No.3480, Agricultural Department, dated 30.11.1968, in view of the resignation from the absorbed organisation, i.e., FACT Ltd., before attaining the age of superannuation. In response to the same, the Government in their letter dated 19.10.1994, held that the petitioner is not eligible for pro-rata pensionary benefits as ordered in G.O.Ms.No.3480, Agriculture, dated 30.11.1968, since he had resigned from the absorbed organization (FACT Ltd.,) before attaining the age of superannuation. 15. As per Rule 23 of the Tamil Nadu Pension Rules, 1978, (1) resignation from a service or post entails forfeiture of past service, provided that a resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under the government where service qualifies. (2) Interruption in service in a case falling under the proviso to sub-rule (1), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to the government servant. 16. As per Rule 41 of the Tamil Nadu State and Subordinate Service Rules, a member of service shall if he resigns his appointment, forfeit not only the service rendered by him in the particular post held by him at the time of resignation but all his previous service under the Government. The reappointment of such person to any service shall be treated in the same way as a first appointment to such service by direct recruitment and all rules governing such appointment shall apply; and on such reappointment he shall not be entitled to count any portion of his previous service for any benefit or concession admissible under any rule or order. 17. A conjoint reading of Rule 23 of the Tamil Nadu Pension Rules, 1978 and Rule 41 of the Tamil Nadu State and Subordinate Service Rules, makes it clear that resignation to the post forfeits the service rendered by him in a particular post held by him at the time of resignation, except permission is granted to take up another appointment, whether temporary or permanent, under the Government. For the purpose of continuity and counting the service for grant of pension, the government servant should take up the new employment under the government, whether temporary or permanent. In the case on hand, the petitioner has resigned from the service of the government and was absorbed in a government company. Therefore, if Rule 23 is applied, the service rendered by the petitioner would be forfeited. 18. In G.O.Ms.No.1035, Finance Department, dated 08.11.1967, the Government of Tamil Nadu have agreed in principle to apply the Government of India's decision, Ministry of Finance (Department of Expenditure), dated 16.06.1967, to the government servants, who is permanently transferred to government companies/corporations. As per the Government of India's decision, a permanent Government servant, on absorbtion in a public sector undertaking will be eligible for pro-rata pension and Death-cum-Retirement Gratuity (in short "DCRG") based on the length of his qualifying service under the government till the date of absorbtion. The pension will be calculated on the basis of average emoluments of three years/preceding the date of absorbtion and the DCRG on the basis of the emoluments immediately before absorbtion. However, the grant of pro-rata pension is subject to certain conditions set in the government letter. 19. Clause (iii) and (iv) of the letter states that pro-rata pension, gratuity etc., admissible in respect of the service rendered under the Government would be disbursable only from the date, the Government servant would have normally superannuated, provided he continues in government Service, till he attains the age of superannuation. As per the Government of India's decision, every Officer will exercise an option, within six months of his absorbtion for either of the alternatives, indicated below: (a) for receiving the monthly pension and DCRG already worked out, under the usual Government arrangements, and (b) for receiving the gratuity and a lumpsum amount in lieu of pension worked out with reference to commutation tables obtaining on the date of superannuation. In respect of officers, who retire from the service of a Public Sector Undertaking, where no option is exercised within the prescribed period, the Officer will automatically be governed by alternative (b) option above. The option once exercised in writing and communicated by the officer concerned to the undertaking. 20. Reading of Clauses (iii) to (v), makes it clear that the government servant, who is absorbed in Public Sector Undertaking Companies Ltd., would be eligible to pro-rata pension/DCRG, if he exercises his option under Clause (iv)(a) and that the said amount would be disbursed only from the date, the government servant would be normally superannuated. Even if the employee of the public sector undertaking/company retires from service on account of any reason before attaining the age of superannuation, the proportionate pension and DCRG would be paid on the date when he attains the age of superannuation. 21. The affidavit in entirety, does not disclose as to whether the petitioner had exercised his option to receive the monthly pension and DCRG already worked out under the usual Government arrangements. It is evident from the certificate, dated 23.09.1993 of the Chief Personnal Manager, (HO), FACT Limited, pension scheme was not in force in FACT Ltd, when the petitioner was absorbed in the company. As per Clause (5) of G.O.Ms.No.1035, Finance, dated 8.11.1967, where an officer retires from the service of a Public Sector Undertaking before his date of superannuation, the proportionate pension and DCRG will not be paid to him till such time, as he actually attains the age of superannuation. This will be the case irrespective of the option exercised by him. 22. Clause (vi) deals with the case of resignation of a person, absorbed in a Public Sector Undertaking and it reads as follows: "Cases of resignation from a public undertaking will for the purpose of these orders be treated as resignation from Government service, entailing forfeiture of the earlier service under Government and loss of the pensionary benefits under these orders." 23. The benefit of regular service of more than 10 years in the Agricultural Department and consequent payment of pro-rata pension and DCRG based on the length of qualifying service under the Government would be extended only in the case of absorbtion from Government servant to Public Sector Undertaking. Absorbtion could be made only by tri-parte agreement. In case of absorbtion, when the services of a government servant are lent, the borrowing department/undertaking has to agree for absorbing such government servant, which includes the consent of the government servant to get himself absorbed. Therefore, both the department and the public sector undertaking or the company for the matter should give their consent for permanent absorbtion without break in service. In the case on hand, the petitioner had already resigned from government service on 28.02.1968. Therefore, as per rules 23 and 41 of the Tamil Nadu Pension Rules, the petitioner forfeits the entire service rendered in Agricultural Department. Even assuming that the petitioner is absorbed in FACT Ltd., with the approval of the government, then Clause 6 of G.O.Ms.No.1035, Finance, dated 08.11.1967, would come into operation, which states that when an employee resigns from the public sector undertaking/company Ltd., that would be treated as resignation from government service entailing forfeiture of earlier service rendered in the Government and the loss of pensionary benefits under the above said order. 24. Rule 9 of the Tamil Nadu Pension Rules is not applicable to the facts of this case, as the said rule deals with the power of the Government