1. The forty-one petitioners are Primary School Teachers under the Government of Mizoram. The State respondents by notification dated 18.9.1996 notified 50 posts of Primary School Teachers under Operation Black Board Scheme (CSS). The petitioners responded to the said notification and after going through the selection process were declared successful by the DPC and accordingly appointed as Primary School Teachers under the OBB Scheme by office order dated 29.4.1997. While the petitioners were serving as Primary School Teachers under the OBB, the respondent No. 5, i.e., the Director of School Education, Government of Mizoram, Aizawl by a communication dated 26.3.2002 conveyed to all Sub-Divisional Education Officers and Education Officer in the Autonomous District Council to discontinue the service of the Primary School Teachers who were engaged under the OBB Scheme (CSS) which included the petitioner w.e.f. 1.4.2002. Being aggrieved, the petitioners approached this court by way of WP(C) No. 161 /2002 which was disposed of by judgment and order dated 8.4.2004. By the said judgment and order dated 8.4.2004, the State respondents were directed to consider the case of the petitioners for absorption against the present or future vacancies till the petitioners are absorbed or adjusted in phased manner according to their seniority, the respondents were directed not to resort to any direct recruitment to the vacant post, be it present or future without first considering the case of the petitioner for absorption as per seniority and any other criteria as may be laid down. It was also provided that if at all any process or selection by way of direct recruitment is required to be initiated to fill up the present or future vacancies under compelling reasons without first considering the case of the petitioner for their adjustment or absorption, they shall be given age relaxation and due weight age of their past experience and training. Despite the judgment and order dated 8.4.2004 passed in WP(C) No. 161/2002, the respondents neglected the case of the petitioner and proceeded to regularize 112 Primary School Teachers besides others as approved by the School Education Department by communication dated 20.4.2007. The State respondents further recruited as many as 145 Primary School Teachers directly by another order dated 18.1.2012. The petitioners, therefore, again approached this court by way of a contempt petition against the respondents which was registered as Contempt Case (C) No. 4/2012. The State respondents further recruited as many as 145 Primary School Teachers directly by another order dated 18.1.2012. The petitioners, therefore, again approached this court by way of a contempt petition against the respondents which was registered as Contempt Case (C) No. 4/2012. While the contempt case was pending, the respondents therein issued an order dated 4.6.2012 regularizing the petitioners in the post of Primary School Teachers with immediate effect. As a result, the contempt petition was closed by order dated 8.6.2012. Subsequently, the respondent No. 5 issued another order dated 21.9.2012 conveying the approval of the Government for counting of past services of the petitioner for the purpose of qualifying service toward their up gradation, pension, leave and pensionery benefits with effect from their respective date of joining on contract basis except for seniority and increment of pay. However, by another order dated 7.11.2012, the earlier order dated 21.9.2012 was cancelled in pursuance to a letter dated 16.10.2012 made by the respondent No. 6, i.e., Director, Accounts and Treasuries, Mizoram. On enquiry, the petitioners learned that the Finance Department had also issued a notification dated 27.2.2012 by which the “Mizoram New Defined Contributory Pension Scheme, 2010” was sought to be modified providing that Tier-I paragraph 2.1 shall include all Muster Roll/Contract/Ad hoc/Officiating/Casual employees whose services were regularized on or after 1.9.2010. Being aggrieved, the present writ petition has been filed challenging the notification dated 27.2.2012 and the office order dated 7.11.2012. 2. Heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel appearing for the petitioners as well as Mr. Lalsawirema, learned Government advocate appearing for the State respondents. 3. Mr. N. Sailo, learned senior counsel appearing for the petitioners submit that the Mizoram New Defined Contributory Pension Scheme, 2010 (Tension Scheme of 2010’) was enacted under article 309 of the Constitution of India and the said Scheme came into force w.e.f. 1.9.2010. Under the Pension Scheme of 2010, persons employed in contract basis besides others were specifically excluded. However, as a result of the Finance Department, notification dated 27.2.2012, the past service of any of the Muster Roll/Contract/Ad hoc/Officiating/Casual employees would not be taken forward to be counted for the purpose of pensionery benefits as far as regularization of the service is done on or after 1.9.2010. However, as a result of the Finance Department, notification dated 27.2.2012, the past service of any of the Muster Roll/Contract/Ad hoc/Officiating/Casual employees would not be taken forward to be counted for the purpose of pensionery benefits as far as regularization of the service is done on or after 1.9.2010. He, therefore, submits that a plain reading of the notification dated 27.2.2012 would show that the said notification was issued without following the prescribed procedure and the same modifies the Pension Scheme of 2010 enacted under article 309 of the Constitution, which is not permissible in law. He also submits that the order dated 7.11.2012 was based on a letter dated 16.10.2012 issued by the Director, Accounts and Treasuries on the basis of the notification dated 27.2.2012 issued by the Finance Department. The notification dated 27.2.2012 being bad in law, the office order dated 7.11.2012 is also liable to be quashed and set aside. He submits that the order dated 21.9.2012 was issued on the basis of an approval given by the Government whereby the past services of the petitioners were taken into account for the purpose of qualifying service towards upgradation, pension, leave and pensioner benefits with effect from their respective date of joining on contract basis. As the order dated 21.9.2012 was issued on the approval of the Government, the respondent No. 5 had no authority to issue the impugned order dated 7.11.2012 which had cancelled the earlier order of 21.9.2012. He submits that the case of the petitioners was regularized on the basis of judgment and order passed by this court on 8.4.2004. Thereafter, their past services was sought to be counted for other service benefits except seniority and increment of pay. He, therefore, submits that the Pension Scheme of 2010 is, therefore, not applicable to the case of the petitioners and in fact, the case of the petitioners are covered by the Government of Mizoram Regularisation of Contract Employees Scheme, 2008 which was formulated under the proviso to article 309 of the Constitution. Under the facts and circumstances of the case, he submits that the impugned notification dated 27.2.2012 and order dated 7.11.2012 be set aside and quashed. 4. Mr. Lalsawirema, learned Government advocate submits that services rendered outside the State plan fund, i.e., CSS Scheme or fund provided by the Central Government cannot be taken as the qualifying service under the State Government. 4. Mr. Lalsawirema, learned Government advocate submits that services rendered outside the State plan fund, i.e., CSS Scheme or fund provided by the Central Government cannot be taken as the qualifying service under the State Government. The petitioners were regularized and absorbed on 4.6.2012 only after the introduction of the Pension Scheme of 2010. According to the Pension Scheme of 2010, ho persons who entered service or are regularized on or after 1.9.2010 are ineligible to receive pension at par with employees who were recruited or regularized before 1.9.2010. The petitioners, therefore, are covered under the Pension Scheme of 2010. He also submits that the notification dated 21.2.2012 was issued by the Finance Department whereby the Pension Scheme of 2010 was partially modified providing that Tier-II paragraph 2.1 shall also include Muster Roll/Contract/Adhoc/Officiating/Casual Employees whose services were regularized on or after 1.9.2010. It was on the basis of this notification that the order dated 7.11.2012 was issued cancelling the earlier order dated 21.9.2012 by which the petitioners were allowed to count their past services for the purpose of qualifying service towards upgradation, pension, leave and pensioner benefits with effect from their respective date of joining on contract basis. He, therefore, submits that there is nothing wrong in the order dated 7.11.2012 and, therefore, the writ petition should be dismissed as being devoid of any merit. 5. I have considered the submissions made by learned counsel appearing for both the parties. 6. For a proper adjudication of the case in hand, it is necessary that the notification dated 27.2.2012 issued by the Department of Finance, Government of Mizoram should be discussed first. It is undisputed that the Pension Scheme of 2010 was enacted under Article 309 of the Constitution. In the absence of any denial as regards enactment of the Pension Scheme, 2010, it is necessary to consider whether the notification dated 27.2.2012 could have been issued by the Department of Finance. 7. A reading of the notification dated 27.2.2012 clearly shows that the said notification has partially modified the Pension Scheme of 2010. Such modification of an enactment under article 309 of the Constitution by an administrative order/notification is prohibited unless sought to be done as per the prescribed procedure. The law is already settled that the statutory rules (framed under proviso to article 309 of the Constitution) cannot be over read by an executive order or executive practice. Such modification of an enactment under article 309 of the Constitution by an administrative order/notification is prohibited unless sought to be done as per the prescribed procedure. The law is already settled that the statutory rules (framed under proviso to article 309 of the Constitution) cannot be over read by an executive order or executive practice. This ratio has been already laid down by a 3-Judge Bench judgment of the Hon’ble Supreme Court in the case of K. Kuppusamy and Another v. State of T.N. and Others, (1998) 8 SCC 469 . It is trite that if there is a conflict between the executive instructions and the rules made under proviso to article 309 of the Constitution of India, the rules made under proviso 2 to article 309 of the Constitution of India shall prevail. 8. In the case of Ajaya Kumar Das v. State of Orissa and Others, (2011) 11 SCC 136 , the Hon’ble Supreme Court has held as under: “14 It is well settled that the statutory rules framed under article 309 of the Constitution can be amended only by a rule or notification duly made under article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars.” 9. The notification dated 27.2.2012 clearly shows that the same was issued partially modifying the Pension Scheme of 2010.The language issued in the notification is by itself self-explanatory and, therefore, no further discussion is required in this matter. To a pointed question put by this court to the learned Government advocate as to whether such notification can modify the Pension Scheme of 2010 which was enacted under article 309 of the Constitution of India, the learned Government advocate has also fairly submitted that the same is not permissible. 10. In view of the discussions made hereinabove, the notification dated 27.2.2012 issued by the Finance Department (APF Branch), Government of Mizoram is set aside and quashed. 11. The notification dated 27.2.2012 having been set aside, the next question before this court is whether the order dated 7.11.2012 issued by the respondent No. 5 is tenable in law. 10. In view of the discussions made hereinabove, the notification dated 27.2.2012 issued by the Finance Department (APF Branch), Government of Mizoram is set aside and quashed. 11. The notification dated 27.2.2012 having been set aside, the next question before this court is whether the order dated 7.11.2012 issued by the respondent No. 5 is tenable in law. The office order dated 7.11.2012 clearly indicates that the order dated 21.9.2012 was cancelled on the basis of the letter dated 16.10.2012 from the Director, Accounts and Treasuries, Mizoram. This court had directed the learned Government Advocate to produce the said letter dated 16.10.2012. The letter dated 16.10.2012 has been produced by the learned Government Advocate before this court today which is also reproduced hereinbelow : “GOVERNMENT OF MIZORAM OFFICE OF THE CHIEF CONTROLLER OF ACCOUNTS ACCOUNTS & TREASURIES MIZORAM :AIZAWL No. G.19020/94/2010-CCA(Pen)/236 Dated Aizawl, the 16th Oct, 2012 To The Director, School Education Department, Aizawl, Mizoram. Sub: Counting of officiating/contract etc service towards pension. Ref: No. A.11012/1/2012-DTE(EDS) dated 21.9.2012. On the above subject, I have the honour to state that as per Office Order issued by you vide letter No. quoted above, past service rendered by 41 Contract Primary School Teachers who were appointed and regularized vide No. A.22015/7/10-DTE(EDS) dt.4.6.2012 are to be counted towards pension, leave and pensionery benefits with effect from their respective date of joining on Contract basis. This is against the Government of Mizoram, Finance Department’s Notification No. G.17011 /2/2011-F.APF dated 27.2.2012 (copy enclosed) which stated that past services of Muster Roll/Contract/Adhoc/ officiating employees whose services are regularized on or after 1.9.2010 should not be taken forward to be counted for the purpose of pension benefits. I, therefore, request you to cancel the said order immediately under intimation to this office, since those 41 (forty one) staff are regularized after 1.9.2010. Yours faithfully, Sd/- (S. HMINGTHANGA) Director, Accounts & Treasuries” 12. The basis of the letter dated 16.10.2012 is the notification dated 27.2.2012. As the notification dated 27.2.2012 has already been set aside, there is no basis for the letter dated 16.10.2012 nor for the order dated 7.11.2012. In view of the above, the order dated 7.11.2012 is also set aside and quashed and the office order dated 21.9.2012 issued by the Director of School Education, Mizoram, Aizawl is brought back to force. 13. Accordingly, this writ petition is allowed. 14. No cost.