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Judgment
These writ petitions seek for issuance of a Writ of Certiorarified Mandamus to call for the records of the first respondent dated 11.07.2022 and 26.02.2020, to quash the same and to consequently consider the service of the petitioners as Village Assistants from 23.09.1982 and 20.10.1983 respectively, for the purpose of computing the retirement benefits. Since the two writ petitions raise a common question of law and arise on substantially similar facts, they are disposed of by this common order.
The facts as averred in the writ petitions are as follows
The petitioners were appointed as part-time Village Assistants on 23.09.1982 and 20.10.1983, and were later regularised as full-time village Assistants with effect from 01.06.1995 by virtue of G.O.Ms.No.625 dated 06.07.1995 issued by the Department of Revenue. It is the case of the petitioners that vide G.O.Ms.No.645 dated 29.11.2010, 10% of the posts were reserved for Office Assistants in the Revenue Department. Both the petitioners were promoted as Office Assistants vide the proceedings dated 25.10.2016, and worked in the Taluk Office at Keeranur.
The Petitioner in W.P.(MD)No.1973 of 2023 retired from service on 30.06.2022. The third respondent had sent a proposal for pension taking into account his service as Village Assistant from 01.06.1995. It is contended that, vide proceedings dated 11.07.2022, the period of service as Village Assistant from 01.06.1995 to 31.10.2016 was taken into account at only 50%, and that for the remaining seven years of service, from 01.11.2016 to 30.06.2022, full service was taken into consideration for the purpose of pensionary benefits.
The petitioner in W.P.(MD)No.1834 of 2023 retired from service on 31.05.2020. The third respondent similarly sent a proposal for pension taking into account his service as Village Assistant from 01.06.1995. It is contended that, the period of service as Village Assistant from 01.06.1995 to 31.10.2016 was taken into account at only 50%, and that for the remaining four years of service, from 01.11.2016 to 31.05.2020, full service was taken into consideration for the purpose of pensionary benefits.
On the above factual narrative, the petitioners seek to count their entire service right from 23.09.1982 and 20.10.1983 respectively, till their retirement on 30.06.2022 and 31.05.2020 respectively, and contend that the orders impugned, in taking into account only 50% of the service rendered from 01.06.1995, are incorrect and are liable to be quashed.
Two distinct issues therefore arise for consideration in these writ petitions:
I.Whether the period of service rendered by the petitioners as part-time Village Assistants, prior to their regularisation with effect from 01.06.1995, can be counted, even in part, for the purpose of pension;
II.Whether the period of their service as full-time Village Assistants, from 01.06.1995 to 31.10.2016, can be reckoned only to the extent of 50%, merely by reason of their subsequent promotion as Office Assistants.
As regards the first issue, it is the case of the petitioners that, by applying Rule 11(4) of the Tamil Nadu Pension Rules, 1978, and relying upon G.O.Ms.No.259 dated 06.08.2003, G.O.Ms.No.41 dated 08.02.2010, and G.O.Ms.No.625 dated 06.07.1995, 50% of their non-regular service, rendered prior to 01.06.1995, can be counted for qualifying service. However, it is to be noted that the applicability of Rule 11(4) to the petitioners is itself in question. A perusal of Rule 2 of the Tamil Nadu Pension Rules, 1978 would indicate that the said rules do not apply to persons who are governed by other statutory service rules. The Petitioners, being Village Assistants, are governed by the Tamil Nadu Village Assistants’ Pension Rules, 1995.
Rule 4(a) of the Tamil Nadu Village Assistant Pension Rules, 1995, reads as under:
“4.(a) In computing the length of service for calculation of pension and gratuity, temporary, officiating and permanent service shall be reckoned as qualifying service.”
Similarly, Rule 7(i) of the Tamil Nadu Village Assistant reads as under:
“7 (i) A Village Assistant shall be eligible for pension if he has rendered a total qualifying service of 10 years or more and discharged or retired as per rules and orders.”
Vide G.O.Ms.No. 9 dated 1995, the rules were made applicable with retrospective effect from 01.06.1995 and hence would apply to the petitioner.
The learned counsel for the petitioner relied upon a decision of the Hon’ble Full Bench of this court in the case of Government of Tamil Nadu v. R Kaliyamoorthy, reported in 2019 6 CTC 705 and referred to para 45 of the said judgment which is extracted hereunder:
“In the light of the above, we answer the reference as follows:-i) Those who are freshly appointed on or after 01.04.2003 are not entitled to pension in view of proviso to Rule 2 of Tamil Nadu Pension Rules, 1978 inserted by G.O. Ms. No. 259 dated 06.08.2003
(ii)Those government servants/employees appointed prior to 01.04.2003 whether on temporary or permanent basis in terms of Rule 10 (a) (i) of Tamil Nadu State and Subordinate Service Rules will be entitled to get pension as per the Tamil Nadu Pension Rules, 1978.
(iii)In case, a government employee/servant had also rendered service in nonprovincialised service, or on consolidated pay or on honorarium or daily wage basis and if such services were regularised before 01.04.2003, half of such service rendered shall be counted for the purpose of conferment of pensionary benefits.
(iv)Those government servants who were appointed in the aforesaid four categories before the cut off date and later appointed under Rule 10 (a) (i) of Tamil Nadu State and Subordinate Service Rules before 01.04.2003 and absorbed into regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension.
(v)Those government servants who were appointed in the aforesaid four categories before 01.04.2003 but were absorbed in regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension."
On the contrary, the learned Additional Government Pleader would submit that the issue has attained finality in the case of the State of Tamil Nadu v. E Balachandran, reported in 2021 3 MLJ 92 and drew my attention to the following paragraph:
19.Now, let us go into the subsequent Government Orders passed, followed by Rules viz., Tamil Nadu Village Assistants Pension Rules, 1995. We have already discussed the Government Order, which came into existence only at the instance of the respondents Village Assistants, who were working in such capacity as part timers. For the first time, under the said Government Order, a regular time scale of pay came into existence. This is a very important point to be noted with respect to the status of the respondents as part-time Talayaris and they have been brought into regular Government Service. Therefore, regular time scale of pay was fixed with effect from 01.06.1995. The subsequent Rules have been framed to take care of their interest. We may note that Rule 2 to reiterate the aforesaid position, which does not create any doubt in our mind. Under Rule 7, the eligibility of a Village Assistant would arise only when a Village Assistant renders qualifying service. Similarly, under
Rule 4(a), the length of service for calculation of pension and gratuity, temporary, officiating and permanent (full-time) service alone should be reckoned as qualifying service. Now, this Rule has been given a go-bye. Resultantly, what the respondents (Talayaris) seek is a relief contrary to their regularisation order, by which, they were brought under the regular time scale of pay with effect from 01.06.1995 and the Rules framed thereafter. Therefore, they cannot approbate and reprobate and it is only on their request, part-time service was converted into full-time service prospectively, creating the status of regular post with regular time scale of pay.
This Court in the case of Principal Secretary to Government v. S Muthaiyah in WANo. 976 of 2021 has reaffirmed this legal position, by holding that part-time service rendered prior to 01.06.1995 cannot be reckoned as qualifying service for pension. Affirming the view taken by E. Balachandran (Supra), the Hon’ble Division bench observed:
“6.We fully endorse and approve the approach adopted above. Persons similarly placed as that of the writ petitioners originally had field day. But their luck ran out on 26.02.2021 when the Hon'ble Division Bench allowed the writ appeals filed by the Government. The said order was also not interfered with by the Hon'ble Supreme Court. The order impugned in these writ appeals are set aside and the writ appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed.”
In light of the categorical finding in E. Balachandran (Supra), I have no hesitation to hold that the Petitioners being covered by the Tamil Nadu Village Assistant Pension Rules, 1995 would not be entitled to the benefit of Rule 11(4) of the Tamil Nadu Pension Rules, 1978 and the law as crystalised in the aforesaid judgment is reproduced hereunder.
22.Therefore, in view of the law laid down as aforesaid, we have no hesitation in holding that the appeals filed by the State are liable to be allowed. There is one more difficulty we may face. This is, with respect to catena of decisions available without taking note of the relevant provisions. Even this issue has been answered by the Full Bench of this Court referred to above, by holding that an issue which is not considered consciously leading to a decision may not be a binding precedent. Thus, illegality cannot be allowed to perpetuate.
23.Learned counsel appearing for the respondents/writ petitioners made reliance upon the decision rendered in Writ Appeal (MD) Nos. 1254 and 1255 of 2019 dated 19.11.2019 in the matter of the State of Tamil Nadu, rep. by its Secretary, Department of Revenue v. Chinna Karuppaiah. We are afraid that the said decision will not enable the respondents from getting the relief. As aforesaid, the relevant Rules were not brought to the notice of the Court and Rule 16 of the Tamil Nadu Village Servants Service Rules, 1980, speaks about the status of the erstwhile Village Assistants and Village Officers such as Talaiyari and Karnams. Insofar as Talaiyaris are concerned, the
part-time posts were sought to be abolished by fixing fixed compensation for the said work done and thereafter, a concession was given by bringing them under regular time scale of pay. The Government Orders concerned, which we discussed, followed by the Rules framed for the aforesaid purpose was not brought to the notice of the Court. We may note at the cost of repetition, but for the Government Order passed on 06.07.1995, the respondents Talaiyaris would have continued to have the status of part-time employees only. Therefore, it is not open to them to consider even from the inception that they were full-time employees, when there was no regular full-time scale of pay on a cadre basis.
It is to be noted that the said decision was carried in an appeal by the Respondents therein before the Hon’ble Supreme Court and the Special Leave Petition came to be dismissed vide order dated 12.08.2022 in SLP(Civil) Diary No. 15406. Therefore, the petitioners’ claim to have any part of their service rendered prior to 01.06.1995 reckoned for pension, whether at 50% or otherwise, accordingly fails.
As regards the second issue, it may be noted that the period from 01.06.1995 to 31.10.2016, the petitioners have worked in full-time service in regular time-scale of pay, consequent upon regularisation vide G.O.Ms.No. 625 dated 06.07.1995 discussed above. The impugned orders, however, reckon only 50% of this period, on the basis of a clarification issued by the Government in clarification letter No. 39161/SCR-8(1)/2018-5 dated 20.11.2019 to the effect that, upon Village Assistant’s subsequent promotion as Village Administrative Officer/Office Assistant, only 50% of his service as Village Assistant could be reckoned for pension under the Tamil Nadu Pension Rules, 1978, while the period of service in the promotional post is reckoned in full.
This very question came up for consideration before this Court in the case of N. Andiyapillai v. Principal Secretary to Government, in W.P. (MD)No. 10819 of 2022 and batch, and by order dated 14.03.2024, this Court held that neither the Tamil Nadu Village Assistants’ Pension Rules, 1995 nor the Tamil Nadu Pension Rules, 1978 contains any provision authorising the reckoning of only 50% of service as Village Assistant upon subsequent promotion, and in the absence of such a provision, the state could not discriminate between the Village Assistants who retire without promotion, for whom full service is reckoned, and those who were promoted, whose service is halved for the purpose of pension. The relevant portion of the judgment is extracted hereunder:
15.However, while considering to reckon 50% of service as Village Thalayari, it is pertinent to mention here that the judgment of the Hon'ble Division Bench of this Court, in W.A. (MD)Nos.1629 of 2018, batch reported in 2021 (3) MLJ 92, dated 26.02.2021, has not been brought to the notice of the learned Single Judge of this Court, while deciding W.P. (MD)No.370 of 2019, dated 22.10.2019. However, taking into account that the full service rendered in the post of Village Assistant is taken into account for reckoning “the qualifying service”, in that case on ensuring parity among those Village Assistants who served as Village Assistants till retirement and those Village Assistants who were promoted as Village Administrative Officer/Village Assistant before retirement, this Court hereby quash the impugned orders in No.P01/3/10123420/ADK/306 dated 02.02.2022 and Letter No.39161/Ser 8(1)/2018-5 dated 20.11.2019 respectively. Thereafter, this Court direct the respondents to consider the petitioners full regular service rendered as Village Assistant and Village Administrative Officer as detailed in the tabular column in para no.2 supra and pass appropriate orders in accordance with law within a period of 12 weeks from the date of receipt of copy of this order.
That order was carried in appeal, and the Hon’ble Division Bench of this Court in The Additional Chief Secretary to Government v. K. Marimuthu, in W.A.(MD)No.1200 of 2025 and batch, dismissed the appeals by order dated 03.02.2026, holding that Village Assistant service, from the date of regularisation, cannot be termed ‘non-provincialised service’, and must accordingly be reckoned in full. The relevant paragraph is extracted hereunder:
9.In view of the submission of Thiru.M.Ajmal Khan, learned Additional Advocate General, on instructions, from the Government, the service of the Village Assistants from the date of the appointment could not be termed as “non-provincialised” service, this Court is inclined to hold that, in all subject matters of these cases before this Court where a Village Assistant is promoted as Village Administrative Officer, the full service rendered as Village Assistant after 01.06.1995 as well as Village Administrative Officer shall be taken into account for computing the pensionary benefits. In view of the above finding that Village Assistant service is not termed as non provincialised service, reliance of the G.O.Ms.No.73 Revenue and Disaster management [Ser.8(1)] Department, dated 13.02.2025, subject to the result of these Writ Appeals need not be considered. Therefore, the writ Court had correctly directed the Government to reckon the writ petitioner's full regular service rendered as a Village Assistant and Village Administrative Officer as qualifying service and this Court finds no merit in these appeals and all the appeals are liable to be dismissed.
This view was followed, on materially identical facts, by a Hon’ble Single Judge in order dated 05.03.2026 in G. Anbarasu v. The Additional Chief Secretary, W.P.(MD)No.9118 of 2025.
“10.From the perusal of the order of the learned Division Bench of this Court and the averments made in the present Writ Petition as well as the counter-affidavit, this Court is convinced that the case of the petitioner herein is identical to the case dealt with by the learned Division Bench of this Court even on factual aspects and therefore the petitioner herein cannot be denied the very same benefit which was upheld by the learned Division Bench of this Court.
11.In the light of the above, the impugned proceedings of the third respondent, dated 14.09.2022 cannot be sustained and the same is hereby quashed. Consequently, the respondents are directed to calculate the service rendered by the petitioner from 01.06.1995 to 21.03.2018 as Village Assistant for the purpose of fixation of his pension, together with the service rendered by the petitioner as Village Administrative Officer and issue orders afresh. The monetary benefits payable to the petitioner shall also be calculated and paid to him as expeditiously as possible, at any rate within period of eight weeks from the date of receipt of a copy of this order.”
Following the above decisions, this Court finds that the petitioners are entitled to have their service as Village Assistant from 01.06.1995 to 31.10.2016 considered in full, together with their service as Office Assistant from 01.11.2016, which already stands reckoned in full, for the purpose of computing their pension.
In light of the foregoing, these writ petitions are partly allowed. The impugned orders dated 11.07.2022 and 26.02.2020, are set aside, to the extent that they reckon only 50% of the petitioners' service as Village Assistant from 01.06.1995 to 31.10.2016. The respondents are directed to take into account the said period in full, together with the petitioners' service as Office Assistant, and to pass consequential orders, and disburse the resultant monetary benefits, within a period of 8 weeks from the date of receipt of a copy of this order. The petitioners' claim for reckoning of their service prior to 01.06.1995 stands rejected, for the reasons recorded above. No costs.