In the High Court of Judicature at Madras Date :: 09..03..2011 Coram :: The Hon'ble Mr. Justice V. Dhanapalan Writ Petition No: 1316 of 2007 1. 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 India praying for issuance of a writ of mandamus directing the respondents to sanction and disburse the increments to the petitioners counting their respective training period for probation and consequently to grant pensionary benefits by adding the training period as qualifying service and pay the arrears with other consequential service benefits. For petitioners : Mr. S.M. Subramaniam For 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 of mandamus directing the respondents to sanction and disburse the increments to the petitioners counting their respective training period for probation and consequently to grant pensionary benefits by adding the training period as qualifying service and pay the arrears with other consequential service benefits and to pass any other orders as this Hon'ble may deem fit. 2. The brief facts necessary for disposal of this writ petition are that both the petitioners had undergone training for a period of one and half years and they were paid stipend by the Government for such period. After their retirement from the respective posts, the 3rd respondent had submitted pension proposals without including the training period as qualifying service for pension purposes, even though the G.O. Ms. No: 610 P & A.R. Dated 28.06.1982 was in force at the time of his retirement. According to the petitioners when their pension proposals were submitted there were sufficient rulings in force to add our training period with qualifying 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 dated 10.07.2002 none of which prohibits adding of training period with qualifying service for pension. It is also petitioners' case that based on the above said G.O. some persons who were similarly placed were granted two increments on 30.07.1992 and these petitioners alone were denied such increment as well as the pension without any valid reason and hence, the present writ petition. 3. The learned counsel for the petitioners brought to the notice of this Court an order passed by a learned Single Judge of this Court dated 22.03.2010 made in W.P. No: 10686 of 2008. That was also a writ petition filed, by an employee of Rural Development Department, challenging the non inclusion of the training period while fixing the qualifying service for pension purposes. 4. I have heard the learned counsel on either side and perused the materials available on record and the decision relied on by the counsel. As rightly contended by the learned counsel appearing for the writ petitioners, the issue raised in this writ petition has already been dealt with in W.P. No: 10686 of 2008 which was disposed of on 22.03.2010. The relevant portion of the order reads thus, " 10. The crux of the question involved in this matter is to the effect that, whether the petitioner is entitled and eligible to count the two years training period i.e., from June 1958 to May 1960, for the purpose of fixation of pension and other benefits. The fact remains that the https://hcservices.ecourts.gov.in/hcservices/ Government passed an order in G.O.Ms.No.85, Rural Development (E7) Department dated 10.7.2002 which is applicable to all Rural Welfare Officers including those who have already retired prior to 10.7.2002. The said G.O was sought to be clarified by the Government by its letter No.34947/E7/2002-05, Rural Development Department, dated 9.1.2003, restricting the applicability of G.O.Ms.No.85, Rural Development Department, dated 10.7.2002 only to those Rural Welfare Officers retired from service on or after 30.7.1992. The petitioner having retired on 31.10.1991, has been aggrieved against the said letter, earlier filed a writ petition in W.P.No.8178 of 2007 and this Court by Order dated 19.7.2007 directed the first respondent to consider the representation of the petitioner dated 20.6.2006 on merits and pass orders in accordance with law. But the first respondent by simply placing reliance on the clarification letter dated 9.1.2003 denied the benefit to the petitioner, ignoring and overlooking the Government order in G.O.Ms.No.85, Rural Development Department dated 10.7.2002, which is applicable to all Rural Welfare Officers including those who have retired prior to 10.7.2002. 11. It is needless to state the it is well settled principle that the Government order issued in the name of the Governor cannot be nullified or modified and cannot be overriden by any subsequent clarification letter of the Government. This Court in a similar situation in K.Sampath vs. State of Tamil Nadu and others reported in 2007 Writ L.R. 521, held hereunder: "9. The reason stated in the impugned order stating that in view of the subsequent clarification issued by the Government by letter dated 4.10.2000 clarifying G.O.Ms.No.118 dated 14.2.1996, is totally illegal since the Government order issued with the executive power of the Government in the name of the Governor cannot be clarified by a letter of the Secretary to the Government. Admittedly no amendment to G.O.Ms.No.118 dated 14.2.1996 is issued and therefore the Government order will prevail over the subsequent Government letter. 10.(a) In the decision reported in (2005) 10 SCC 244 (R.P.Bhardwaj v. Union of India and others) the issue dealt with was to whether a letter of the Central Ministry issued by the Secretary will override the Office Memorandum and the Hon'ble Supreme Court held that the Government letter cannot be acted upon unless a new Office Memorandum is issued. The relevant portion of para 8 is extracted hereunder, https://hcservices.ecourts.gov.in/hcservices/ ".... We have already notice that the OM dated 19.7.1989 contained instructions to be noted and followed by all concerned. That position was prevailing when the proposal by means of letter dated 23.11.1989 was mooted. It was not yet issued as OM for compliance by all concerned as was done in respect of the OM dated 19.7.1989. In our view, it was still at a premature stage and before being final so as to be circulated by the Government of India for being followed by the authorities and the departments and all concerned, it seems to have been acted upon by the Service Commission against the OM which was in operation. Even if any implied approval is inferred by the Public Service Commission, it would be of no consequence since then too it would not be anything more than an approval of a proposal. An approved proposal would not replace as OM issued by the Government of India. Even after approval of the Government may not issue any OM. The Commission wrongly acted upon the mere proposal". (b) In an unreported decision in W.P.No.1713 of 1988, etc., bath by common order dated 7.11.1990, this Court considered similar issues as to whether the Government letter will prevail over the Government Order or not and held that the Government Order having been authenticated and expressed to be taken in the name of the Governor, has the sanctity of an order issued under Article 166 of the Constitution of India and the Government letter issued subsequently 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 similar issue as to whether the Government letter will prevail over the Government Order. The relevant portion of para 34 reads as follows, "In the given case, Government Order has been passed in exercise of power under Article 162 of the Constitution of India and it is an executive order, which could be issued only in the name of the Governor. The executive order issued in the name of the Governor cannot be modified by another executive order, not being issued in the name of the Governor....." 12. The principle laid down in the decision cited supra by placing reliance on the decision of the Hon'ble Apex Court, is squarely applicable to the facts of the instant case, as in this case also, the Government has sought to clarify the G.O.Ms.No.85, Rural Development Department 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 those Rural Welfare Officers retired from service on or after 30.7.1992. Therefore, this Court has no hesitation to set aside the impugned order on this sole ground. 13. It is also worthwhile to refer to the decision of the Hon'ble Apex Court in Col.B.J.Akkara (Retd.) vs. Government of India and Others reported in (2006) 11 SCC 709 wherein the Hon'ble Apex Court has held hereunder: "20. The Principles relating to pension relevant to the issue are well settled. They are: (a) In regard to pensioners framing a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred". The well settled principle laid by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. 14. In view of the aforesaid reasons, this Court is constrained to quash the Government Letter No.34947/E7/2002-05 Rural Development Department, dated 9.1.2003 and Government Letter No.28725/E4/2007, Rural Development and Panchayat Raj Department dated 18-03-2008 passed by the 1st respondent herein in so far as the same is contrary to G.O. (Ms) No.85, Rural Development Department, dated 10.7.2002 and consequently direct the respondents herein to forthwith re-fix the pension of the petitioner herein by counting the two years training period (from June 1958 to May 1960) spent by him in the Rural Extension Training Centre, Aduthurai as qualifying service for pension and pay arrears of pension and other benefits. It is made clear that the above said exercise shall be completed within a period of eight (8) weeks from the date of receipt of copy of this Order. " 5. Following the above decision cited supra and the law laid down 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 petitioners herein by counting the training period undergone by them as qualifying service for pension and pay arrears of pension and other benefits. Considering the age of the petitioners herein the respondents shall complete the above said exercise within a period of 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.Registrar gp To 1. 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.17154 1 cc To The Government Pleader, SR.17306 W. P. No: 1316 of 2007 NM(CO) sra 05/04/2011 https://hcservices.ecourts.gov.in/hcservices/