THE HONOURABLE MR.JUSTICE M.M.SUNDRESH AND THE HONOURABLE MRS.JUSTICE S.ANANTHI W.A.(MD)Nos.1629 of 2018, 167, 213, 507 to 509 of 2019, 789, 876, 910, 1006

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 09.02.2021, 11.02.2021, 16.02.2021 & 19.02.2021
Delivered on : 26.02.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI

W.A.(MD)Nos.1629 of 2018, 167, 213, 507 to 509 of 2019, 789, 876, 910, 1006,
1178, 1190, 1227 to 1231, 831, 849, 1257, 1282 to 1295 of 2020 and 198 and
199, 127 to 129, 339 to 344 & 387 of 2021
and
C.M.P.(MD)Nos.11859 of 2018, 1382, 1801, 4354 to 4356 of 2019, 4482, 4810,
4950, 5480, 6406, 6470, 6833, 6837 & 6839, 6843 & 6844, 6846 & 6847, 6851 &
6852, nil, 4717, 7166, 7361, 7358 & 7362, 7363 & 7364, 7365 & 7366, 7367 &
7368, 7370 & 7371, 7372 & 7373, 7375 & 7376, 7377 & 7378, 7379 & 7380, 7381 &
7382, 7383 & 7384, 7385 & 7386, 7387 & 7388 of 2020, 616, 617, 360 & 361, 364
& 365, 367, 1154, 311 & 312, 318 & 320, 1172 & 388, 1173 & 1174, 1175 & 11761
& 1390 of 2021

W.A.(MD)No.1629 of 2018:~

1.The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Revenue Department,
Secretariat,
Chennai ? 600 009.

2.The Additional Chief Secretary and Commissioner
of Revenue Administration,
Ezhilagam, Chepauk,
Chennai ? 600 005.

3.The District Collector,
Virudhunagar District,
Virudhunagar. … Appellants/Respondents

Vs.
E.Balachandran … Respondent/Petitioner

Prayer : Appeal filed under Clause 15 of the Letters Patent Act against the
order passed by this Court in W.P.(MD)No.14377 of 2014, dated 27.03.2018.

For Appellants : Mr.Sricharan Rengarajan
Additional Advocate General
Assisted by
Mr.K.P.Krishnadoss
Special Government Pleader

For Respondent : Mr.S.Visvalingam

* * * * *
COMMON JUDGMENT

(Judgment of the Court was delivered by M.M.SUNDRESH, J)

In these batch of Writ Appeals, we are concerned with the issue of
entitlement of 50% of the service rendered prior to the change of status as
Full Time Government Servants, insofar as Village Headman/jiyahhp. and
recruitment made afresh for erstwhile Karnam (Village Officers) appointed on
a hereditary basis.
2.This Court in a catena of judgments held that 50% service rendered as
part time employees without a cadre post can still be counted in accordance
with the rules. Some of the decisions rendered, placing reliance upon the
earlier decisions, attained finality with the dismissal of the Special Leave
Petitions and thereafter due implementations made.

3.There are two different types of Government servants in these batch
of Writ Appeals. In one set of cases, qua village headmen, they were employed
earlier on a part time basis not borne on a cadre post and the second set of
cases involve Village Karnams appointed afresh by going through the process
of selection through the rules framed, while the earlier one was hereditary
without any qualification prescribed.

4.Before considering the issues raised in these Writ Appeals, let us
have a fresh look at the facts along with the provisions governing the posts.

5.The Village Headmen (Talayaris) were appointed on a part time basis
decades ago. They were brought under the rules framed in exercise of power
conferred under Section 309 of the Constitution of India in supersession of
the Tamil Nadu Village Officers Service Rules, 1970 and of the Tamil Nadu
Village Officers Service Rules, 1978. Thereafter, Tamil Nadu Village Servants
Conduct Rules, 1983 came into the picture. These rules have been made
applicable to all those appointed under the Madras Proprietary Estates-
Village Service Act, 1894. Thus, these Rules were made applicable to the
part~time service of Village Headman/Village Servant, who continue to hold
the same status. We may note, Village Assistant, Village Servant and Village
Headman are all one and the same.

6.In the year 1978, separate pension rules have been brought forth for
the Government servants working in the State of Tamil Nadu. Of this, Rule 11
speaks of reckoning the qualifying service rendered by a Government servant
prior to the regular service. Explanation to Rule 11 has been brought forth
with effect from 01.01.1979 and Rule 11(2) with effect from 15.04.1996 and
Rule 11(3) with effect from 14.02.1996. Similarly Rule 11(4) has been brought
into the statute from 09.02.2010.

7.As the Village Servants viz., Talayaris were not brought under the
regular full time employment, they made several representations, right from
the year 1980 and to consider the request made, a High Level Committee was
constituted. Accordingly, a recommendation was made to make such part time
Village Servants/Village Assistants as full time Government servants. The
aforesaid recommendation was accepted by the Government in G.O.(Ms.) No.625,
Revenue Department, dated 06.07.1995, indicating that separate rules should
be made for them. Accordingly, another Government order was passed in
G.O.(3D) ? No.9, Revenue (Ser.7(1)) Department, dated 28.02.2006, paving the
way for Tamil Nadu Village Assistant Pension Rules, 1995.

8.These persons were admittedly not given pension in tune with Rule 11
of the Tamil Nadu Pension Rules, 1978 on two grounds viz., the same is not
applicable to them and they are having separate set of rules. Writ Petitions
have been filed in most of the cases and after few decades of their
superannuation, the Writ Petitions were accordingly, allowed.

9.The second set of cases involve the Village Officers, viz., Karnams.
These persons were originally made as such, by way of hereditary rights for
life. Therefore, neither there was any qualification involved nor it is based
upon any tenure. An ordinance was passed, which was replaced by the enactment
called ?The Tamil Nadu Abolition of the Posts of Part~Time Village Officers
Act, 1981 (Act, 3 of 1991)?. Accordingly, the part~time Village Officers as
aforesaid were relieved in pursuant to the abolition. A challenge was made
before the Hon-ble Apex Court. The challenge was repelled by the Apex Court
in K.Rajendran & Ors. v. State of Tamil Nadu reported in 1982 AIR 1107 with
the following directions:~
?(i) The State Government will give effect to the memorandum filed on
its behalf which is incorporated in this judgment in the case of those who
possess the minimum general qualifications prescribed under the Act and the
Rules made thereunder and who were holding the posts of part~time village
officers immediately before the Act came into force. The State Government
shall re~employ all such persons who have not crossed the age of
superannuation and who are selected as per the memorandum in the new cadre
within four months from today. Until they are so selected, they will not be
paid any remuneration. Even if they are re~employed, the amount paid to them
pursuant to the interim orders will not be recovered from them.
(ii) The compensation, if any, payable by the State Government under
section 5 of the Act to those who cease to be village officers shall be
adjusted against the amount paid pursuant to the interim orders passed in
these cases. The State Government will not recover from them any amount paid
to them pursuant to the interim orders passed in these cases in excess of the
compensation, if any, payable to them.
(iii) The interim orders stand vacated with effect from April 15,
1982.?

Thereafter, the Committee went into the matter and gave re~employment to such
of those, who are qualified. Even this set of employees, though retired,
again approached this Court, seeking counting of 50% of the services rendered
in the erstwhile post of Village Karnam, placing reliance on Rule 11 of Tamil
Nadu Pension Rules, 1978. Once again, after decades of their reaching the age
of superannuation, they are also accordingly, allowed. As in the other cases,
the issue involved attained finality, given effect to in certain cases.

Provisions:

10. The Tamil Nadu Pension Rules, 1978:
Rule 3(o) defines the -qualifying service-. A -qualifying service-
would mean only permanent or officiating service rendered in a post included
in pensionable establishment. Thus, the said Rule makes the position very
clear that the services will have to be permanent or officiating to be
rendered in a post included in the pensionable establishment. The aforesaid
provision is reproduced hereunder:
?3(o) -qualifying service- means permanent or officiating service
(including temporary service under emergency provisions) rendered in a post
included in a pensionable establishment;
Rule 11 is the important rule, which is appositely referred hereunder:~
?11. Commencement of qualifying services. ~ (1) Subject to the
provisions of these rules, qualifying service of a Government servant shall
commence from the date he takes charge of the post to which he is first
appointed either substantively or in an officiating or temporary capacity. In
the case of a Government servant retiring on or after the first October
1969, [***] temporary or officiating service in the pensionable post whether
rendered in a regular capacity or not shall count in full as qualifying
services even if it is not followed by confirmation.
Note. ~ In the case of the employees of the former Pudukkottai State
and persons transferred from the former Travancore~Cochin State consequent on
the reorganisation of States, temporary or officiating service rendered in a
regular capacity under the former Pudukkottai State or the former Travancore~
Cochin State shall count in full for purposes of pension.
Provided that ~
(a) in the case of a Government servant, service rendered before
attaining the age of eighteen years shall not count, except for compensation
gratuity;
(b) in the case of a Government servant whose year and month of birth
are known, but not the exact date the 16th of the month should be treated as
the date of birth. When the year of birth is known but not the month and date
1st July of the year shall be taken.
(c) in the case of a Government servant with no military service who
gives on recruitment only his age, but not the year of his birth, the year
should be arrived at by deducting from the year of recruitment the given age
and then the date of birth should be taken as the 1st July of that year:
Provided further that in the case of a Government servant with previous
military service the date of birth is fixed as laid down below ~
When a military employee is transferred to a civil department under the
Government and assumes a civilian status, the date of birth to be entered in
his service book should be the date stated by him at the time of attestation.
When the documents referring to the previous military service of an
individual do not give the definite date of birth but only the age stated at
the time of attestation, he should be assumed to have completed the stated
age on the date of attestation e.g., if ex~soldier was enrolled on 1st
January 1910 and if on that date, his age was stated to be 18, his date of
birth should be taken as 1st January 1892. This procedure will apply to cases
arising on or after 27th June 1938.
Notwithstanding anything contained above, in cases where S.S.L.C or any
other school certificate is available, the date of birth, as entered therein
should be taken into account.
[Explanation. ~ For the purpose of date of birth, the word “attestation“
refers only to die initial records kept by the Defence Department at the time
of appointment of the individual and not in the discharge from the discharge
the Defence Department.]
[(2) Half of the service paid from contingencies shall be allowed to
count towards qualifying service for pension along with regular service
subject to the following conditions:~
(i) Service paid from contingencies shall be in a job involving whole
time employment and not part~time for a portion of the day.
(ii) Service paid from contingencies shall be in a type of work or job
for which regular posts could have been sanctioned, for example Chowkidar.
(iii) Service shall be for which the payment is made out on monthly or
daily rates computed and paid on a monthly basis and which, though not
analogous to the regular scale of pay, shall bear some relation in the matter
of pay to those being paid for similar jobs being performed by staff in
regular establishments.
(iv) Service paid from contingencies shall be continuous and followed
by absorption in regular employment without a break.
(v) Subject to the above conditions being fulfilled, the weightage for
past service paid from contingencies shall be limited to the period after the
1st January 1961 for which authentic records of service may be available.
(vi) Pension or revised pension admissible as the case shall be paid
from the 23rd June, 1988.]
[(3) Half of the service rendered by a Government servant under non~
pensionable establishment shall be counted for retirement benefits along with
regular service under pensionable establishment subject to the following
conditions:~
(i) Service under non~pensionable establishment shall be in. a job
involving whole time employment.
(ii) Service under non~pensionable establishment shall be on time scale
of pay and
(iii) Service under non~pensionable establishment shall be continuous
and followed by absorption in pensionable establishment without a break.
Provided that in respect of those who retired prior to the 14th
February, 1996, the retirement benefit or revised retirement benefit, as the
case may be, admissible to them shall be paid from the 14th February, 1996
and there shall be no claim for arrears in any case, for the period up to the
13th February, 1996.]
[(4) Half of the service rendered under the State Government in non~
provincialised service, consolidated pay, honorarium or daily wages basis on
or after 1st January 1961 in respect of Government employees absorbed in
regular service before 1st April 2003 shall be counted for retirement
benefits along with regular service, subject to the following conditions,
namely:~
(i) Service rendered in non~provincialised service, consolidated pay,
honorarium or daily wages basis shall be in a job involving whole time
employment;
(ii) Service rendered shall be on consolidated pay, honorarium or daily
wages basis paid on monthly basis and subsequently absorbed in regular
service under the State Government;
(iii) Service rendered in non~provincialised service, consolidated pay,
honorarium or daily wages basis shall be followed by absorption in regular
service before 1st April 2003 without a break.
Provided that this sub~rule is applicable to all employees who rendered
service under the State Government in non~provincialised service,
consolidated pay, honorarium or daily wages basis on or after 1st January
1961 and absorbed in regular service before 1st April 2003.
Provided further that wherever there was break in service before their
absorption in regular service before 1st April 2003, the same shall be
specifically condoned by the orders of the Head of Departments, in which the
employees were regularly absorbed and such period of break, shall not count
for the purpose of pensionary benefits.]?
Under sub~rule 2 of Rule 11, the employment will have to be whole time and
not part time and the post will have to be regular and sanctioned one. As per
sub~rule (3), services under non~pensionable establishment must be in job
involving whole time employment and at a time scale of pay, without any break
prior to absorption. Similar conditions are also imposed under sub~rule (4).
Thus, the aforesaid Rule abundantly makes it clear that half of the services
under a non~pensionable establishment can only be reckoned, when there is a
full time employment in a cadre post, fixed time scale of pay and without any
break prior to absorption. Therefore, there are two issues, which are
required to be taken note of, viz., the nature of employment and an existence
of permanent post on a regular time scale of pay.

11. The Tamil Nadu Village Servants Conduct Rules, 1980:
These set of Rules are obviously prospective in nature. Rule 3 speaks
about mode of recruitment. These Rules also speak about the position of part~
time Village Servants viz., Talayaris. They are accordingly made entitled to
payment of an amount for the total service put in as determined in sub~rule
(2) of Rule 14. Rule 14(1) and (2) are accordingly, reproduced hereunder:~
?14. Amount to be paid on retirement. ~ (1) Every person who ceases to
hold the post of part~time Village Servant by reason of sub~rule (i) of rule
13, shall be paid an amount for the total service put in by him as part~time
Village Servant and such amount shall be determined in accordance with the
provision of sub~rule (2).
(2) The amount referred to in sub~rule (1) shall be calculated at the
rate of one~half of the monthly emoluments for every year of total service
put in by the person referred to in sub~rule (1).
Explanation. ~ For the purpose of this rule,~
(a) Where the total service,~
(i) includes a period which is a portion of a year; or
(ii) is a period less than a year, the amount payable for the
period referred to in sub~clause (i) or (ii), as the, case may be, shall be
an amount bearing to the amount payable for one year of total service, the
same portion as the said period bears to a period of one year of total
service;
(b) “monthly emoluments“ shall mean~
(i) Honorarium;
(ii) Panchayat Development Allowance, which were payable to the
part~time Village Servant for the whole of the calendar month immediately
proceeding the date of his retirement, and
(iii) an amount equal to one~twelfth of the consolidated annual
travelling allowance for the year ending with the 31st March of the year of
retirement:
Provided that where the part~time Village Servant was on leave
other than casual leave or was absent without authorisation, or was under
suspension, during the whole or part of the month proceeding his retirement,
the monthly emoluments shall mean,~
(i) Honorarium; and
(ii) Panchayat Development Allowance, which would have been
payable to him for the whole of the said month preceding his retirement, but
for such leave, absence or suspension; and
(iii) an amount equal to one twelfth of the consolidated annual
travelling allowance for the year ending with the 31st March of the year of
retirement;
(c) “total service“ shall not include any period during which a
part~time Village Servant was~
(i) on leave other than casual leave, or
(ii) absent without authorisation, or
(iii) under suspension.?
Rule 16 of the Tamil Nadu Village Servants Service Rules, 1980, again
reiterates the position that the service rendered as Talaiyari is not
pensionable. The following is the said Rule:~
?16.Fundamental Rules and the Tamil Nadu Leave Rules, 1978 etc., not to
apply.~~
(1) The provisions of the Fundamental Rules and the Tamil Nadu Leave
Rules, 1978, shall not apply to the Village Servants.
(2) The posts are non~pensionable.?

12. The Tamil Nadu Village Servants Conduct Rules, 1983:~
These Rules deal with the conduct of the Village Servants, being part~
time Government servants. Under Rule 3, taking note of the employment being a
part~time for Village Servants, a concession has been given to facilitate
taking up private trade or employment either as part~time work or employment,
provided they do not interfere with their legitimate duties. The only caveat
is the prior permission. Thus, there can never be any iota of doubt on the
nature of work being part time. The said Rule is appositely referred
hereunder:~
?3. Private trade or employment. ~ The Village Servants being part~time
Government servants, may take up part~time work or occupation:
Provided that ~
(1) such part~time work or occupation shall not interfere with their
legitimate duties as village servants; and
(2) the previous permission, in writing, has been applied for and
obtained from the Revenue Divisional Officer concerned if the work or
occupation is confined to the charge village and from the District Collector
concerned, if the work or occupation extends beyond the charge village.?
As demands were made right from the inception of Tamil Nadu Village Servants
Conduct Rules, 1980 by the part~time Talayaris, a decision was made by the
Government to induct them as full~time employees by Government Order in
G.O.(Ms) No.625, Revenue Department, dated 06.07.1995, as aforesaid. As per
the said Government Order, there is a change in status and for the first
time, the request made by the part~time Village Assistants (Talayaris) was
accepted. This was followed by the Government Order in G.O.(3D) No.9, Revenue
(Ser.7(1) Department, dated 28.02.2006, fixing the Family Pension and Death~
cum~Retirement Gratuity to such of those persons. This is the history and
story of Village Assistants, who by their persistent pleas, became a regular
full~time Government servants due to the concession granted by the Government
on the recommendation made by the High Power Committee.

13.As the Village Officers (Karnams) were functioning only by
inheritance, without any qualification, the Rules were brought forth
abolishing such posts. They laid a challenge to the Rules. In pursuant to the
orders passed by the Hon-ble Apex Court, they were accordingly, re~employed
as they had the requisite qualification. Admittedly, they were in a non~
pensionable service, apart from they being part~time workers. There is a
continued dis~entitlement under Rule 11 of the Tamil Nadu Pension Rules, 1978
from recognising half of the services rendered. Now, we are dealing with a
case involving such persons whose Writ Petitions were allowed, placing
reliance on the earlier orders passed.

SUBMISSIONS OF THE APPELLANTS/RESPONDENTS:

14.All these appeals have been preferred by the State as against the
one, where the private party filed the appeal.

15.Learned Additional Advocate General appearing for the appellants
submitted that admittedly the respondents are working in a non~pensionable
establishment, which does not involve a cadre of posts. These writ
petitioners were part~time employees. The Rules also clearly indicate the
aforesaid position. In fact, they were brought under regular cadre either by
the Government Order passed in G.O.(Ms) No.675, Revenue Department, dated
06.07.2015, applicable to Village Assistants and by way of re~employment,
involving recruitment process, for Village Karnams in pursuant to the orders
passed by the Apex Court. The issue involved is no longer res integra as the
aforesaid position has been dealt with by the Larger Bench of this Court in
Government of Tamil Nadu and others v. R.Kaliyamoorthy reported in 2019(6)
CTC 705. There is no estoppel against the statute and a decision rendered
without considering the relevant provision cannot be termed as a binding
precedent. In support of the contentions, reliance has been made on the
following decisions:~
(i) M.Annaimuthu v. State of Tamil Nadu [MANU/TN/0142/2009]
(ii) Union of India v. Gandiba Behera [2019 SCC Online SC 1444]
(iii) O.Ramachandran v. Union of India [MANU/TN/2555/2016]
(iv) Maharashtra State Cooperative Cotton Grovers- Marketing Federation
v. Employees Union [1994 Supp (3) SCC 385] and
(v) Dhyan Singh v. State of Haryanan [(2002) 10 SCC 656].

16.Supporting the contentions of the learned Additional Advocate
General, learned Standing counsel appearing for the Accountant General
submitted that a very reading of the Rules themselves make the position clear
that the Writ Petitioners were holding part~time jobs in the un~sanctioned
posts. There appears much disconnection insofar as Village Officers (VAO) and
Karnams are concerned. Therefore, these Writ Appeals are to be allowed.

SUMMISSIONS OF THE RESPONDENTS/WRIT PETITIONERS:

17.Learned counsel for the respondents/writ petitioners submitted that
the delay and laches cannot be put against them as it is one-s entitlement of
pension and similarly placed persons were given the relief. There are
numerous orders passed as confirmed by the Hon-ble Apex Court. The order
passed in their favour has been given effect to. Specific direction was
issued to implement the same. Rule 11 has been interpreted by the Courts
already. Much reliance has been made on the Division Bench judgment of this
Court 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, wherein the scope and ambit of the Tamil Nadu
Village Servants Service Rules were considered and it has been held that the
post held by them was permanent. The law, which has been settled long time
back, shall not be unsettled. The decision of the Hon-ble Full Bench of this
Court, referred above, does not apply to the cases on hand. In support of the
contentions, learned counsels have made reliance upon numerous judgements,
which are reproduced hereunder:~
(i) K.Rajendran and others v. State of Tamil Nadu and others [1982 AIR
1107.
(ii) M.Annai Muthu v. State of Tamil Nadu, Rep. by the Secretary to
Government, Revenue Department and others [W.P.Nos.276 to 280 of 2009 and
W.P.Nos.287 to 293 of 2009, dated 09.01.2009].
(iii) P.Subramanian v. State of Tamil Nadu, Rep. by the Secretary to
Government, Revenue Department and others [W.P.No.8318 of 2011, dated
27.07.2011].
(iv) S.S.Kaliabiran v. the Government of Tamil Nadu, Rep. by the
Secretary to Government, Finance Department and others [W.P.(MD) No.515 and
1072 of 2012, dated 21.02.2014].
(v) K.Alagarsamy and others v. The Government of Tamil Nadu, Rep. by
its Secretary, Rural Development Department and others [W.P.Nos.7217 of 2015
etc., batch, dated 02.08.2017].
(vi) D.Ambalagan v. The Secretary to Government, Revenue Department and
others [W.P.No.10252 of 2012, dated 16.11.2017].
(vii) M.Paranthaman v. The State of Tamil Nadu, rep. by its Principal
Secretary to Government, Revenue Department and others [W.P.(MD) Nos.19807 to
19809 of 2014, dated 22.01.2018].
(viii) M.Jayaraman v. The Principal Secretary to Government, Revenue
Department and others [W.P.(MD) No.2408 of 2018, dated 09.03.2018].
(ix) V.S.Deivasigamani v. The Principal Secretary to Government,
Revenue Department and others [W.P.(MD) Nos.2968 and 2969 of 2018, dated
15.03.2018].
(x) R.Samayakaruppa Pillai v. The State of Tamil Nadu, Rep. by its
Principal Secretary to Government, Revenue Department and others [W.P.(MD)
Nos.14376 to 14379 of 2014, dated 27.03.2018].
(xi) S.Ambikapathy v. The State of Tamil Nadu, Rep. by its Principal
Secretary to Government, Revenue Department and others [W.P.(MD) Nos.5771 to
5779 of 2015, dated 27.03.2018].
(xii) Government of Tamil Nadu v. K.Sakthivel [2018 (1) CWC 689].

(xiii) The State of Tamil Nadu, Rep. by its Secretary, School Education
Department and others v. C.Jayarani Gnanadevi [W.A.(MD) No.844 of 2018, dated
03.07.2018].
(xiv) The State of Tamil Nadu, Rep. by its Principal Secretary to
Government, Revenue Department and others v. M.Paranthaman [W.A.(MD) Nos.1065
to 1067 of 2018, dated 17.09.2018].
(xv) C.Selvamani v. The State of Tamil Nadu, Rep. by its Principal
Secretary to Government, Revenue Department and others [W.P.(MD) No.2483 of
2015, dated 12.12.2018].
(xvi) D.A.Ramar v. The State of Tamil Nadu, Rep. by its Principal
Secretary to Government, Revenue Department and others [W.P.(MD) Nos.20146 to
20149 of 2014, dated 22.01.2019].
(xvii) The State of Tamil Nadu, Rep. by its Principal Secretary to
Government, Revenue Department and others v. D.A. Ramar [W.A.(MD) Nos.966 to
969 of 2019, dated 24.09.2019].
(xviii) The State of Tamil Nadu, Rep. by its Secretary to Department of
Revenue and others v. V.Rajagopal and others [W.A.(MD) Nos.973 and 974 of
2019, dated 25.09.2019].
(xix) The State of Tamil Nadu, Rep. by its Principal Secretary to
Government, Revenue Department and others v. R.Samayakaruppa Pillai and
others [W.A.(MD) Nos.1261 to 1263 of 2019, dated 20.11.2019].
(xx) The State of Tamil Nadu, Rep. by its Principal Secretary to
Government, Revenue Department and others v. N.Kottaichamy [W.A.(MD) Nos.183
and 185 of 2020, dated 02.03.2020].
(xxi) Sethurama Pandiyan v. The Secretary to Government, Revenue
Department and others [W.P.(MD) Nos.16896 and 16921 of 2018, dated
31.07.2018].
(xxii) K.Mony v. The Accountant General (Accounts and Entitlements) and
another [W.P.(MD) No.7370 of 2011, dated 16.08.2018].
(xxiii) N.Krishnan v. The Secretary to Government, Revenue Department
and others [W.P.(MD) Nos.23208 to 23219 of 2018 etc., batch, dated
31.01.2019].
(xxiv) The State of Tamil Nadu, Rep. by its Secretary to Government,
Department of Revenue and others v. K.Karuthapandi and another [W.A.(MD)
Nos.886 to 893 of 2019, dated 04.09.2019].
(xxv) C.Samuthiram v. The Principal Secretary to Government, Revenue
Department and others [W.P.(MD) No.19434 of 2019, dated 09.09.2019].
(xxvi) The Government of Tamil Nadu, Rep. by its Secretary to
Government, School Education Department and others v. A.Muthuramalingam [W.A.
No.3077 of 2019, dated 13.09.2019].
(xxvii) K.Velmayil v. The Secretary to Government, Revenue Department
and others [W.A.(MD) No.370 of 2019, dated 22.10.2019].
(xxviii) The State of Tamil Nadu, Rep. by its Secretary, Department of
Revenue and others v. Chinna Karuppaiah [W.A.(MD) Nos.1254 & 1255 of 2019,
dated 19.11.2019].
(xxix) N.Krishnan v. The Secretary to Government, Revenue Department
and others [W.P.(MD) Nos.23208 to 23219 of 2018 etc., batch, dated
10.02.2020].
(xxx) N.Rakkamuthu v. The Principal Secretary to Government, Revenue
Department and others [W.P.(MD) Nos.4537 of 2019 etc., batch, dated
10.02.2020].
(xxxi) P.Alagu v. The Principal Secretary to Government, Revenue
Department and others [W.P.(MD) Nos.22332 of 2017 etc., batch, dated
10.02.2020].
(xxxii) S.Muthiah v. The Principal Secretary to Government, Revenue
Department and others [W.P.(MD) No.7392 of 2020, dated 08.07.2020].
(xxxiii) E.Arumugam and others v. The Principal Secretary to
Government, Revenue Department and others [W.P.(MD) No.14677 of 2019, dated
10.07.2020].
(xxxiv) R.Ramaiah v. The Principal Secretary to Government, Revenue
Department and others [W.P.(MD) Nos.3319 and 20411 of 2019, dated 10.07.2020]
and
(xxxv) The Secretary to Government and others v. K.Velmayil [S.L.P. (C)
No.19157 of 2020, dated 20.11.2020].
These decisions includes few rendered by one of us (MMSJ) as well.

DISCUSSION:
18.We have already took note of the relevant Rules. A perusal of the
Tamil Nadu Village Servants Conduct Rules, 1983, clearly states the status
and position of Writ Petitioners. Certainly, they come under the definition
-Village Assistants-. However, Rule 3, which facilitate a Village Servant to
take job of part~time work or occupation, makes it abundantly clear that he
is only a part~time Government Servant. Similarly, Rule 14 of Tamil Nadu
Village Servants Service Rules, 1980, which gives a succour to a part~time
Government servant, as that of the respondents, gives a specific
compensation. A conjoint reading of the aforesaid Rules would show that a
Village Servant/Assistant was having a part~ time service alone.
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.

20.Much reliance has been made to Rule 11(a) read with Rule 2(o) of the
Tamil Nadu Pension Rules, 1978. These Rules are not applicable to the
services of Talaiyaris, being in non~pensionable establishment and part~time
and that too not in a cadre post. As per Rule 11(4), there must be whole~time
employment. Similarly, there shall not be any break, which is in existence.
Insofar as the other set of employees are concerned, viz., Village Officers
(Karnams), we may appropriately quote Rule 16 of the Tamil Nadu Village
Servants Service Rules, 1980. Even as per Rule 16 of the said Rules, the post
of Talaiyari being~non pensionable, they are not entitled.

21.We are quite convinced with the entitlement of the respondents in
the light of the discussions made. Our above said conclusion is also
strengthened by the judgment of the Full Bench of this Court in Government
of Tamil Nadu and others v. R.Kaliyamoorthy reported in 2019(6) CTC 705,
which could be seen through the following paragraphs:~
?29. Having regard to the above rule position, we proceed to examine
the claim of the writ petitioners. Admittedly, the writ petitioners herein
were appointed in various departments of the Government in non~provincialised
services, on consolidated pay, honorarium or daily wage basis, on
contingency basis. They were not appointed against any sanctioned post or
regular post. For having rendered such service, they were paid daily wage or
wages from the contingency fund. To be specific, the writ petitioners were
not appointed in a cadre post whether on temporary or permanent basis against
vacancies which were duly notified. They were appointed on daily wage basis
prior to 01.04.2003 on various dates. The service of some of the petitioners
were also admittedly regularised after 01.04.2003 in a cadre post as and when
permanent vacancies arose or had been notified. The writ petitioners
therefore claimed that they are entitled to count half of the service
rendered by them on daily wage basis or as contingent employees or on
honorarium basis or in non~provincialised services etc. along with the
regular service as has been contemplated under Rule 11 (4). The petitioners
also claimed equity on par with one Murugan, in whose favour, the Government
passed G.O. (D) No.332, Environment and Forest Department dated 19.11.2008 by
which the service rendered by the said Murugan, on daily wage basis for about
20 years was ordered to be counted along with his regular service rendered by
him till his retirement on 30.09.2005. In other words, even though the
service of the said Murugan was regularised after 01.04.2003, yet, as a
special case, the Government issued G.O. (D) No.332, Environment and Forest
Department dated 19.11.2008 and ordered to count half of the service rendered
by him on daily wage basis along with his regular service. This had
apparently sparked and/or kick~started a volley of writ petitions to be filed
before this Court at the instance of persons similarly placed like the writ
petitioners in this batch. This Court had also, based on the order passed by
the Government in G.O. (D) No.332, Environment and Forest Department dated
19.11.2008 directed the Government to count half of the service rendered by
the persons similarly placed like the petitioners along with their regular
service, purportedly on the ground of equity. The State Government filed
writ appeals before the Division Bench of this Court, as against few cases in
which such directions were issued by the single Bench.

31. On behalf of the writ petitioners, it was contended that the writ
petitioners have been temporarily employed with nomenclature such as daily
wage employees, on consolidated pay or on honorarium basis etc. and as per
Rule 11 (1) the service rendered by them in such temporary employment has to
be counted along with the regular service in a cadre post. We wish to
observe that the word temporary or officiating service employed in Rule 11
(1) is referable to -temporary appointment- contemplated under Rule 10 (a)
(i) of Tamil Nadu State and Subordinate Services Rules. On a reading of Rule
10 (a) (i), the wordings employed thereof are explicit and clear. A
temporary appointment made to a government service is the one which is made
in a post borne on the cadre of a service, class or category, meaning thereby
such temporary appointment is made in an existing vacancy or notified
vacancy. Rule 10 (a) (i) further makes the position clear that such
appointment is permissible to be made by the appointing authority in case of
emergency to fill the vacancy, in public interest. For such appointment, the
appointing authority has to form an opinion that the procedural process for
appointment to the cadre post will take some time and that such delay would
prejudice the public interest. In such circumstances, Rule 10 (a) (i) can be
invoked for appointing a candidate on temporary appointment in a sanctioned
post. The service of such person, though appointed on temporary appointment
can later be regularised by following the due procedure. The significance
for invoking Rule 10 (a) (i), apart from public interest, is the existence of
sanctioned post or vacancy in a post borne on the cadre of a service, class
or category. Thus, Rule 10 (a) (i) cannot be invoked in the absence of an
existing vacancy in a cadre post. Therefore, we are of the view that the
temporary appointment mentioned in Rule 11 of the Pension Rules, in the realm
of Service Law Jurisprudence, is referable only to Rule 10 (a) (i) of the
Tamil Nadu State and Subordinate Services. The writ petitioners were however
appointed on daily wage basis on payment of honorarium or consolidated pay
and did not come within the fold of Rule 10 (a) (i) of the Tamil Nadu State
and Subordinate Services Rules. Only the appointments made under the
provisions of Rule 10 (a) (i) of the aforesaid Rules alone can be considered
as temporary appointment. Therefore, the submissions made on behalf of the
petitioners relying upon Rule 3 (o) has to be rejected. Admittedly the Writ
Petitioners were not appointed invoking Rule 10(a)(i).

34. Rule 11 (4) of the Tamil Nadu Pension Rules, 1978 confers an
additional benefit to such class of Government servants to include half of
the service rendered in the above capacity for determining qualifying service
provided their service was regularised before 01.04.2003. Rule 11 (4) by
itself is not intended to deny pension to respondents/writ petitioners if
appointment was prior to 01.04.2003 in the cadre post, whether temporary or
permanent.
35. Rule 11 (4) merely provides a method for determining the ?
qualifying service? for government employees who were absorbed into service
before cut~off date of 01.04.2003.
36. The significance of Rule 11 (4) is to bring the service of a
government employee / servant within the realm of qualifying service to count
half of the service rendered under the State Government in non~
provisionalised service, consolidated pay, honorarium or daily wages basis
before 1st April 2003 for retirement benefits, if the absorption to service
was before 01.04.2003.
37. Rule 11 (4) of the Tamil Nadu Pension Rules, 1978 allows a
Government employee / servant appointed in a cadre post before 01.04.2003 as
per the Rules whether in temporary or permanent capacity to include 50% of
the service rendered in (i) non~provincialised services; (ii) Consolidated
pay; (iii) honorarium; or (iv) daily wage basis along with regular service
subject to conditions stipulated therein.
38. For instance if a government employee/servant was appointed and
absorbed between the cut off dates i.e. 01.01.1961 and 01.04.2003, then
he/she will be entitled to include half of the service rendered under the
State Government in (i) non~provincialised services; (ii) Consolidated pay;
(iii) honorarium; or (iv) daily wage basis into his/her services for
determination of qualifying service.
39. On the other hand, if a Government employee / servant was not
absorbed between the aforesaid cut off dates, he/she will not be entitled to
include half of the service rendered under the State Government in (i) non~
provincialised services; (ii) Consolidated pay; (iii) honorarium; or (iv)
daily wage basis into his/her services even though such person may be
entitled to Government Pension under the Rule if he/she was appointed in a
cadre post on or before 01.04.2003 but was absorbed after the said date.
40. For example, if a person is appointed prior to 01.04.2003 in a
non~provincialised service or on consolidated pay or on honorarium or daily
wage basis and later to a cadre post on temporary basis under Rule 10 (a) (i)
of The Tamil Nadu State and Subordinate Service Rules before 01.04.2003 and
such service is regularised after 01/04/2003, such Government employee is
eligible for Government Pension under the Tamil Nadu Pension Rules but at
the same time would not be eligible to include half of services rendered in
such capacity viz., i) Non~provincialised Services ii) Consolidated pay; iii)
honorarium; or iv) daily wage basis to his regular service.
41. Thus, a government servant who may have been appointed before the
cut~off date of 31.03.2003 may be entitled to government pension if he
satisfies the requirement of qualifying service in Rule 3(o) of the Tamil
Nadu Pension Rules, 1978. However, such a person will not be entitled to add
half of the past service held in any one of the four capacity mentioned above
prior to 01.04.2003 since his regularisation is subsequent to the cut off
date. Therefore, only those who were appointed prior to 01.04.2003 whether as
temporary appointment but in accordance with Rule 10 (a) (i) alone will be
entitled to get pension.
42. The cut off date i.e. on or after 01.04.2003 in proviso to Rule 2
of the Tamil Nadu Pension Rules, 1978 will not per se bar a person from
getting pension if such a person had joined the service in accordance with
the provisions of Tamil Nadu State and Subordinate Service Rules i.e in the
cadre whether on temporary or permanent basis. Services rendered before the
cut off date of 01.04.2003, can be added to the regular service only if the
service was regularised before the said date for determining the qualifying
service. Therefore, in our opinion, it would be appropriate to say that Rule
11 (4) gives the meaning of qualifying service rather than giving
significance to cut off date. Therefore, it is clear that only if the
appointment is in accordance with the Rules and such appointment is prior to
01.04.2003, 50% of the past service can be added along with the regular
service.

44. The aforesaid Judgment of the Honourable Supreme Court would
squarely apply to this case. Merely because this Court has passed multiple
number of orders in favour of some of the similarly placed persons like the
writ petitioners, it will not operate as res judicata or it will preclude the
State Government from questioning those orders in a parallel or similar
proceedings. In such circumstances, we are of the view that the orders,
hitherto passed by this Court, both single Bench or the Division Bench will
not operate as a bar for maintaining these writ appeals or writ petitions or
those orders will not be considered as the one which laid down any binding
precedent to be followed in other cases. An order, which was not passed in
accordance with the statutory provisions, need not be followed by the Court
at the instance of similarly placed persons.?
The sum and substance of the decision rendered, which in our view, is that a
Government Servant is entitled for reckoning the half of the past services,
even while working in non~provincialised service, or on consolidated pay or
on honorarium or daily wage basis only when there exists a cadre post. Rule
11 of the Tamil Nadu Pension Rules, 1978, merely facilitate the reckoning of
the past services of a Government servants subject to the conditions
stipulated therein.

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.

24.The reliance made on the Tamil Nadu Village Servants Service Rules
also is not correct, since it is to be applied prospectively for the new
appointments. Therefore, there is no question of deemed permanent status
contrary to the Rules and in any case, the respondents cannot approbate and
reprobate.

25.Insofar as the Village Officers (Karnams) are concerned, the Act
itself clearly specifies that they were part~time Village Officers and
therefore, they were abolished. That is the reason why a challenge was made
before the Courts. Thus, there is no ambiguity with respect to their own
status. Secondly, re~employment has been made in favour of few eligible
persons after due scrutiny by the Committee. A learned Single Judge (The
Hon-ble Mr. Justice V.Ramasubramanian), as he then was, by order dated
09.01.2009, made in W.P.Nos.276 to 280 of 2009 and W.P.Nos.287 to 293 of
2009, in the matter of M.Annai Muthu v. State of Tamil Nadu and others, has
clearly captured the history, background and their entitlement. Even for
them, a separate Government Order has been passed in G.O.Ms.No.121, Revenue
Department, dated 13.03.2001, giving certain pensionary benefits. In this
connection, we would appropriately quote the following paragraphs:~
?17. However, by an order in G.O.Ms.No.121, Revenue, dated 13.3.2001,
the Ex. Village Officers who lost their jobs on 14.11.1980 and who got
appointed temporarily after 1988 by acquiring the minimum general educational
qualification subsequent to the date of abolition, but who retired without
completing the qualifying service of 10 years, were granted the benefit of
special pension originally ordered to the Ex~Officers who lost their jobs and
who never got re~employment. Paragraphs~7 and 8 of the said order read as
follows:~
“7. The Government have after careful consideration of the request of
the Retired Village Administrative Officers and the recommendation of the
Principal Commissioner and Commissioner of Revenue Administration, direct
that the pensionary benefits ordered in G.O.(Ms) No.828, Revenue, dated
23.8.1996 and enhanced in G.O.(Ms) No.629, Revenue, dated 22.7.1998 be
extended to the Ex~Village Officers who lost their jobs on 14.11.1980 and who
did not possess minimum general educational qualification at the time of
abolition of the posts of Village Officers (i.e.) 14.11.1980, but obtained
the educational qualification, subsequent to 20.2.1982 and appointed as
Village Administrative Officers under Rule 10(a)(i) basis with reference to
G.O.(Ms) No.1287, Revenue, dated 6.7.1988 and retired without completing 10
years of qualifying service.
8. The Government also direct that the said category of Ex~Village
Officers are eligible for pension sanctioned in paragraph~3 above, with
effect from 5.12.1986, excluding for the period they worked as Village
Administrative Officers.“
18. To summarise, the vexed question of grant of pension for the
services rendered by the erstwhile Village Officers has undergone a
metamorphosis over the past three decades and step by step the Government
have yielded to the demand, categorywise as follows:~
(a) FOR THOSE WHO NEVER GOT RE~EMPLOYED:~
A special pension of Rs.175/~ per month later enhanced to
Rs.250/~ per month with attendant benefits to all those living Ex~Village
Officers, who lost their jobs on 14.11.1980 but who never got re~employed was
first sanctioned with effect from 5.12.1986. For the families of those who
were dead, a special family pension of Rs.100/~ per month later enhanced to
Rs.150/~ per month, was similarly sanctioned.
(b) FOR THOSE WHO GOT RE~EMPLOYED IN 1982:~
For persons who lost their jobs on 14.11.1980 and who were
appointed as Village Administrative Officers in the year 1982, by virtue of
possessing minimum general educational qualification, but who retired without
completing 10 years of service in the new category, their services were
directed to be counted not from the date of their appointment in 1982 but
directed to be counted with effect from 14.11.1980, so that they get 10 years
of qualifying service in the new category to get at least minimum pension.
If these persons did not get 10 years of service, even after
counting the service from 14.11.1980, then they were directed to be granted
the special pension as per G.O.Ms.No.828, Revenue, dated 23.8.1996, with
effect from 5.12.1986, but excluding the period of their non~employment.
(c) FOR THOSE WHO GOT RE~EMPLOYED AFTER 1988:~
Persons who lost their jobs on 14.11.1980 and who got appointed
temporarily under Rule 10(a)(i) after 1988, by virtue of acquiring minimum
general educational qualifications after the date of abolition, the special
pension granted to those who were never re~employed, was granted with effect
from 5.12.1986, excluding the period of their re~employment on temporary
basis.?
In our considered view, the learned Single Judge, as he then was, has
correctly applied the law by taking note of the fact even for the recruitment
of part~time re~employment. Therefore, in the process, there were separate
sets of Rules dealing with pensionary benefits. Now, there is no separate
sets of Rules. They can recourse to the regular course of Rule applicable to
Government servants under the Tamil Nadu Pension Rules, 1978. Incidentally,
this being a re~employment, even otherwise Rule 11(3) would act as an
embargo.

26.Having considered the entire issues involved, we also find that
there is no application of Article 14 of the Constitution of India by
comparing the respondents with those who got the relief albeit without taking
note of the relevant provisions of law. Granting the relief would amount to
setting aside two pension Rules without even a challenge especially when the
respondents got the benefit of regular employment and permanent posts under
the subsequent orders passed, on their request.

27.In the result, the appeals filed by the Government of Tamil Nadu
stand allowed by setting aside the orders passed by the learned Single Judge
and consequently, the appeal filed by the Writ Petitioner in W.A.(MD) No.831
of 2020 stands dismissed. No costs. Consequently, connected Miscellaneous
Petitions are closed.

Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes/No 26.02.2021
sj

Note: In view of the present lock down owing to COVID~19 pandemic, a web copy
of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.

 

 

To
1.The Secretary,
State Government of Tamil Nadu,
Department of School Education,
Secretariat, Fort St. George,
Chennai ? 600 009.

2.The Director of School Education,
Directorate of School Education,
College Road,
Chennai ? 600 006.

3.The Chief Educational Officer,
Dindigul,
Dindigul District.
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.

sj

 

 

 

 

 

 

Pre~delivery common Judgment in
W.A.(MD)Nos.1629 of 2018, 167, 213, 507 to 509 of 2019, 789, 876, 910, 1006,
1178, 1190, 1227 to 1231, 831, 849, 1159 to 1165, 1191, 1192, 1257, 1282 to
1295 of 2020 and 198 and 199, 127 to 129, 339 to 344 & 387 of 2021

 

 

 

 

 

Delivered on
26.02.2021

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