WP/17628/2018 of A.Elangovan, Vs State of Tamil Nadu,

____________ W.P. No.17628/2018 IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on Pronounced on 26.03.2026 06.04.2026 CORAM THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN THE HONOURABLE MR. JUSTICE M.DHANDAPANI AND THE HONOURABLE MR. JUSTICE K.KUMARESH BABU W.P. NO.17628 OF 2018 A.Elangovan .. Petitioner - Vs - 1. State of Tamil Nadu Rep. By its Principal Secretary Department of Revenue Secretariat, St. George Fort Chennai 600 009. 2. The Commissioner Revenue Administration Ezhilagam, Chepauk Chennai 600 005. 3. The District Collector OfÏce of District Collector Tiruppur, Tiruppur District. 4. The Tahsildar Dharapuram Taluk Tiruppur District. .. Respondents 1 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a writ of mandamus directing the respondents to grant pension to the petitioner by calculating petitioner’s entire serv ice from the date of joining the service as part time Village Assistant, i.e., from 01.01.1980 onwards instead of date of regularization on 01.06.1995 upto petitioner’s retirement on 30.06.2016 with arrears by considering the petitioner’s representation dated 28.02.2018. For Petitioner : Mr. N.Ponraj For Respondents : Mr. P.S.Raman, AG Assisted by Mr. T.Chandrasekaran, Spl.G.P. ORDER M.DHANDAPANI, J. The failure to count 50% of the service rendered by th e petitioner as Part- Time Village Assistant for the purpose of pensionary bene fits prior to the change of status of the petitioner as full-time Government Servant u pon issuance of G.O. (Ms) No.625, Revenue Department, dated 06.07.1995 by regular ising the service of Village Assistants from 01.06.1995 is put in issue through t he present writ petition. 2 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 2. Before detailing the reasons which prevailed upon th e learned single Judge to refer the matter to a Larger Bench, the point of reference, as has been formulated and placed before this Court for an authoritative answer, is as under:- “Whether the 50% service rendered by the petitioner as part time Village Assistant has to be taken into account along with the regular service period to determine the pensionary benefits or not, as per the judgment dated 08.01.2010 of the Apex Court in SLP (CC) No.21683/2009.” 3. The scenario in which this reference has come to b e placed before this Court needs to be briefly set out so as to have a better a ppreciation of the issue, based upon which this Court can deliberate and render opinion on the point of reference. 4. The writ petition was filed by the petitioner for seeking the indulgence of this Court to direct the respondents to pass orders on the representation of the petitioner for counting the service rendered by the petitioner as Village 3 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 Assistant prior to regularisation of the services of the petition er in the post of Village Assistant on 1.6.1995. 5. When the matter was placed for hearing before the learned single Judge (Battu Devanand, J.), the learned counsel for the petitione r and the respondents placed countering decisions with regard to the entitlem ent of Village Assistants to have the period prior to 1.6.1995 to be counted for the purpose of pensionary benefits. The submissions advanced by the learned counsel on either side has been captured as under by the learned single Judge :- “2. Learned counsel for the petitioner has drawn the attention of this Court to the G.O.(Ms) No.33, Revenue [Ser-8(1)] Department dated 25.01.2010 and would submit that, in the light of the judgment dated 08.01.2010 ren dered by the Apex Court in S.L.P.(CC) No.21683 of 2009, which was filed against the judgment dated 16.02.2009 in W.A.(MD)No . 16 of 2009, a Division Bench of Madurai Bench of Madras High Court in an identical matter, issued the said G.O.. to grant pension to the petitioner therein, taking into account of his entire period of service from 21.07.1995 and the petitioner also seeking the same relief in the present writ petition. 2.1. Learned counsel for the petitioner also relied on the judgment dated 22.10.2019 in W.A.(MD) No.370 of 2019 rendered by a Division Bench of Madurai Bench of Madras High Court wherein, it is directed to pass orders counting 50% 4 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 of the services of the appellant put in by him as Thalaya ri for the period from 07.01.1983 to 31.05.1995 for the pu rpose of calculation of pension along with regular services put in by him as Village Assistant. 3.On the other hand, the learned Additional Government Pleader appearing for the respondents has placed reliance on the judgment in W.A.(MD) No. 1629 of 2018 and batch. dated 26.02.2021 passed by a Division Bench of Madurai Bench of Madras High Court and judgment in W.A.(MD) No.1631 of 2021 and batch dated 30.11.2023, would sub mit that the petitioner is not entitled for the relief sought in the present writ petition for taking into account of his entire period of service to grant pensionary benefits. 4. I have gone through the two Division Bench judgments relied on by the learned Additional Government Pleader. Bu t I could not find there is any consideration of the judgmen t of the Apex Court in S.L.P. No.21683 of 2009 dated 08.01. 2010 which was passed in favour of the petitioner in an identical matter, by the two Division Benches. 5. Under these circumstances, I am of the opinion that in view of the conflicting findings of various Division Benches, it is appropriate to place this matter before the Hon'ble The Chie f Justice to take decision to refer this issue before Larger Bench to examine whether, the 50% service rendered by the petitioner as part time Village Assistant has to be taken into account along with the regular service period to determine t he pensionary benefits or not, as per the judgment dated 08.01.2010 of the Apex Court in S.L.P.(CC) No. 21683 of 2009." 5 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 6. From the above order, it is evidenced that the lear ned single Judge, while found that there are conflicting decisions of various Division Benches, further found that the decision of the Apex Court in S LP (CC) No.21683/2009 has not been taken into consideration, which prevailed upon the learned single Judge to place the matter before the Hon’ble Chief Justice for be ing placed before a Larger Bench. 7. Before endeavouring to answer the reference, the c onflicting decisions, which have been pressed into service for and against th e relief sought for are tabulated hereunder and the substantive portion, which are relied on requires to be discussed. The decisions relied on by the respective parties are as under:- Decisions relied on by the Petitioner Decisions relied on by the Respondents The District Collector, Kanyakumari District & Anr. – Vs – K.Raman Nair (W.A. (MD) No.16/2009 – Dated 16.02.2009) Govt. Of Tamil Nadu & Ors. – Vs – R.Kaliyamoorthy (2019 (6) CTC 705) K.Velmayil – Vs- The Secretary to Government & Ors. (W.A. (MD) No.370/2019 – Dated 22.10.2019) State of Tamil Nadu & Ors. – Vs – E.Balachandran & Ors. (W.A. (MD) Nos.1629/2018, etc. Batch – Dated 26.02.2021) State of Tamil Nadu & Ors. – Vs – Chinna Karuppaiah & Ors. (W.A. (MD) Nos.1254 & 1255/2019 – Dated The Principal Secretary to Government, Revenue Department, Chennai & Ors. – Vs – M.Krishnan & Ors. (W.A. (MD) 6 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 19.11.2019) Nos.1631/2021, etc. Batch – Dated 30.11.2023) 8. The case of Raman Nair (supra) , has been relied on, on behalf of the petitioner for seeking the relief for counting the service ren dered prior to the date of regularisation of the petitioner in the post of Village Assistant. 9. In Raman Nair case while the learned single Judge allowed the prayer for counting the period of service rendered by the petitioner therein by placing reliance on Rule 11 of the Tamil Nadu Pension Rules, the said decision, tested before the Division Bench, resulted in dismissal of the appeal on the below mentioned reasoning :- “6. It is not in dispute that the writ petitioner was appointed on 21st July, 1975. The said appointment was mad e on temporary basis, in a scale of pay, as evident from letter of appointment a quoted hereunder. "PROCEEDINGS OF THE TAHSILDAR KALKULAM Thiru.A.Madhavan. A2/1 8736/75 (1) Dated: 21-7-75 Sub: VILLAGE ESTABLISHMENT - Kalkulam Taluk Appointment of Thalayari - Order issued. Ref:1.G.O.Ms.No.15914, Rev. dated. 19.4.75 2.Collector's G1/40516/72 dated 9.7.75 7 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 The following candidates are temporarily appointed as Thalayaris in the bifurcated villages noted against each. They should join duty forthwith in the new villages. They will be paid at the scale of pay fixed for the Thalayari under the Tamilnadu Pattern. for Tahsildar." (emphasis supplied) 7. The persons who were appointed as per the proceedin gs dated 21 st July, 1975 cannot be guided pursuant to the order of regularisation contained in G.O.Ms.No.625, Revenue Department, dated 6 th July, 1995. Even the said Government Order says that the services of persons appointed as pa rt-time Assistants were regularised in the time scale of pay of Rs .600- 10-750. If the writ petitioner was appointed on 21 st July, 1975, along with others, on temporary basis in the scale of pay fixed for Village Assistants, the respondents cannot deny pens ionary benefits to the writ petitioner and others who were so appointed along with him, giving reference to G.O.Ms.No.625, Revenue Department, dated 6th July, 1995, as payment of pension is guided by statutory rule. Therefore, the said Government Order 625, Revenue Department, dated 6th Ju ly, 1995 is applicable only to those who were initially appointed as part-time Village Assistants and subsequently given Full Time appointment by providing scale of pay to the post of Village Assistants at Rs.600-10-750 and not to those, like the petitioner, who were already temporary Village Assistants in the regular scale of pay. 8 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 8. Rule 11 of the Tamil Nadu Pension Rules, 1978, of which reference has been given by the learned Single Jude, re lates to commencement of qualifying service for payment of pension. The relevant portion of which is quoted hereunder. "11.Commencement of qualifying service.— (1) Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date of takes charge of the post to which he is first appointed either substantively or in an ofÏciating or temporary capacity. In the case of a Government servant retiring on or after 1st October, 1969, temporarily or ofÏciating service in pensionable post whether rendered in a regular capacity or not shall count in full as qualifying service even it is not followed by confirmation." It will be evident from the above rule that for payment of pension not only the appointment in the substantive capacity to be looked into but the appointment in an ofÏciating or temporary capacity is also to be counted for commencement of qualifying service. 8. Insofar as the Village Assistants are concerned, they are guided by Special Rules known as Tamilnadu Village Assistant s Pension Rules, 1996. Chapter-II of the said Rules deals with Pension and Gratuity and relevant portions of which are quoted hereunder : "CHAPTER-I- GERGRAL (1) (i) These rules shall be called the Tamil Nadu Village Assistants Pension Rules 1996. 9 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 (ii)They shall be deemed to have come into force on 1st June 1995. (2) These rules shall apply to the full-time employed in the Revenue Village Assistants Department. CHAPTER-11 - PENSION AND GRAVITY 3)The age of retirement shall be 60 years. 4) (a) In computing the length of service for calculation of pension and gratuity temporary, ofÏciating and and permanent (full time) service shall be reckoned as qualifying service. (b) If there are breaks in service on account of any reason, such breaks shall not have the effect of forfeiting the past service. provided the Assistants had been discharged or retired as per rules and orders. (c) Leave without pay, suspension allowed to stand as a specific penalty, overstayal of jointing time or leave not subsequently regularized and periods of breaks shall not be reckoned as qualifying service. 7(1)A Village Assistant shall be eligible for pension if he has rendered a total qualifying service of 10 yea rs or more and discharged or retired as per rules and orders. (1) Pension shall be calculated at 50% of average emoluments drawn in the last 10 months before retirement for qualifying service of 66 half years and proportionate pension shall be paid for e qualifying service of less years subject to a minimum of Rs.990/-." 10 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 9. From the aforesaid Special Rules relating to Village Assistants, it would be evident that not only the perman ent (full time) service to be counted for reckoning the period of qualifying service but, the period of service rendered as temporary (full time) or ofÏciating (full time) shall also be counted for reckoning the period of qualifying service.” (Emphasis Supplied) 10. The Division Bench, hearing the appeal, concurred w ith the view taken by the learned single Judge on the ground that the petitioner therein was temporarily appointed as Thalayari in a post borne out of a cadre and was paid the time scale of pay fixed for Thalayari, which was evidenced by the proceedings of the Tahsildar drawing reference to the Government Orders. Further, the Division Bench, adverting to Rule 11 of the Tamil Nadu Pen sion Rules, 1978, held that qualifying service for the purpose of payment of pen sion would commence from the date when the employee takes charge of the p ost to which he is first appointed either substantively or in an ofÏciating or temporary capacity in a cadre post in a time scale of pay. 11. Further the Division Bench, adverting to the Tamil Nadu Village Assistants Pension Rules, 1995, more particularly Chapter II of the said rules which deals with pension and gratuity wherein clause 4 (a) provides that in 11 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 computing the length of service for calculation of pension and gratuity, temporary, ofÏciating and permanent (full time) service shall be reckoned as qualifying service. In such a backdrop, since the appoi ntment of the petitioner therein was on temporary basis in a substantive post carryi ng time scale of pay, which post was borne out of a cadre, the direction of the learned single Judge to count 50% of the past services of the petitioner therein for the purpose of computing pension and gratuity was afÏrmed by the Division Bench. 12. The decision of the Division Bench was put in issue befor e the Apex Court in SLP (CC) No.21683/2009 by the State and the Apex Court, while dismissed the special leave petition by confirming the impu gned order, however, left open the question of law for consideration in a different circumstance. Therefore, it is clear that on the facts of the case pl aced, the Apex Court had passed the said order and the relevant legal position and Rules governing the counting of past service for the purpose of pension and other retirement benefits was not deliberated by the Apex Court. 13. In view of the aforesaid direction, the Government i ssued G.O. Ms. No.33, Revenue (Ser-B(1)) Dept., dated 25.01.2010 for counting the past services 12 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 of the petitioner therein for the purpose of computing pension an d gratuity. There could be no quarrel with the proposition that if a Village Assistant is appointed in a substantive vacancy, be it as a temporary, ofÏciating or permanent post borne out of a cadre in a time scale of pay, necessaril y that service would have to be reckoned for the purpose of calculating the tota l pensionable service, as provided for under the Tamil Nadu Pension Rules, as a lso the Tamil Nadu Village Assistants Pension Rules, 1995. 14. In the aforestated scenario, the moot question that requires determination is the nature of the post of Village Assista nt, which alone would form the basis for counting the period of past service in th e said post prior to its regularisation on 1.6.1995. 15. Thereafter, a Division Bench of this Court in Velmayil case (supra), had occasion to consider a similar issue relating to counting o f service of persons in the post of Thalayari’s prior to 1.6.1995 for the purpose of pe nsionary benefit and after adverting to various decisions on the issue, in w hich differing views were taken, ultimately held as under :- “13.Most importantly the learned Counsel appearing for the appellant relied upon a judgment of Hon'ble Mr.Justice 13 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 R.Suresh Kumar in W.P.(MD)No.14245 of 2018 dated 10.07.2018 wherein a person similarly placed filed a Writ Petition for issuing a Writ of Mandamus directing the respondents to count 50% of the services rendered by the petitioner therein as Village Assistant along with the petitioner's regular service from 01.06.1995 to 28.02.2004 and to sanction regular pension in terms of Rule 11 of the Tamil Nadu Pension Rules, 1978. The learned Judge after refer ring to G.O.Ms.No.9, Revenue (Sect) 7(1) Department, dated 28.02.2006 whereby Tamil Nadu Village Assistants Pension Rules, 1995 was brought into force, found that Rule 4(a) envisages that, for the purpose of computation of the length of service for calculation of pension and gratuity, service rendered by the Village Assistants on temporary basis or ofÏciating basis or permanent basis, as a full time employee, shall be reckoned as qualifying service . The learned Judge held that an employee whether he was holding the post on temporary or permanent basis, his past service should be reckoned as a qualifying service for computation of length o f service for calculation of pension and gratuity payable to th e Village Assistants. The only argument advanced before the learned Single Judge in the said case was that the word “full time” mentioned in Rule 4(a) of the Rules is crucial and that service rendered on temporary, ofÏciating or permanent basis by the Village Assistants shall be reckoned as qualifying service for the purpose of pensionary benefits only if such service rendered by them is a full time service . However, the learned Single Judge, contrary to the plain language of Rule 4(a) of the 14 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 Tamil Nadu Village Assistants Pension Rules, 1995 which contemplates counting of entire service rendered by the Village Assistants on temporary basis as a qualifying service , ruled to calculate only 50% of the past service rendered b y the Village Assistants before they were brought under time sca le of pay and regularised from 01.06.1995. However, a c ontrary view was taken by the Hon'ble Mr.Justice S.Vaidyanathan in M.Vellaiyan v. The Secretary to Government, Department of Revenue and others in the following lines: “13.The Division Bench and the learned Single Judge of this Court in the decisions quoted supra have not taken into account the Tamil Nadu Village Service Rules, 1980 and also the Tamil Nadu Village Servant Conduct Rules, 1983. In terms of the aforesaid rules, the posts held by persons, pursuant to the said Rules, belong to non-pensionable service. If the petitioner's services is counted as pensionable one, only then, Tamil Nadu Pension Rules will apply. 14.Rule 11(4) of the Tamil Nadu Pension Rules, 1978 quoted by the respondents may not be applicable to the facts of this case, as this has been introduced in the year 2010. Even otherwise, reading Rule 11(2) in isolation, the petitioner's services cannot be treated as a pensionable service. 15.It is no doubt true that, there is a Government order extending the benefit to one other employee granting pensionary benefits. That may not be applicable to the facts of this case. In view of the 15 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 observations mentioned in the said order, which has been extracted supra, it has been made very clear that 'as a special case', the pensionary benefits can be extended and that it cannot be treated as a precedent. 16. Two wrongs will not make a thing right. The Government order extending the benefits to the employee whose name is referred supra itself is bad. But, however, this Court is not passing any order directing the respondents to stop the pensionary benefits, as he has the benefit of pension and will continue to enjoy the benefit. As long as Tamil Nadu Village Servants Service Rules, 1980 does not support the case of the petitioner and also as long as Rule 16(2) is there in the Rules, persons like the petitioner cannot be entitled to the pensionary benefits.” 14. After referring to two judgments above referred t o, the learned Single Judge has referred the matter to a Larger Bench on the ground that there are two conflicting views and th at TamilNadu Village Assistants Service Rules, 1980 and Rule 4(a) of the Tamil Nadu Village Assistants Pension Rules, 1995 which was brought into force by G.O.Ms.No.9, Revenue (Sect) 7(1)Department, dated 28.02.2006 were not considered in the earlier judgments which are cited by the appellant as precedents.” * * * * * * 16. The Government Order in G.O.Ms.No.473, Revenue and Disaster Management Department, Services Wing, dated 03.12.2018 is brought to the notice of this Court. After 16 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 referring to G.O.Ms.No.173 Revenue [Ser.8(1)] Department, dated 29.05.2014, the Government considered the order passed by this Court by a learned Single Judge of this Court in a batch of cases in W.P.(MD) Nos.6905 to 6908 of 2015 befo re the Madurai Bench of Madras High Court. Though the ord er of this Court in a batch of Writ Petitions was implemented by t he above Government Order, relying upon Rule 4(1) of Tamil Nadu Village Assistants Pension Rules, 1995 it was observed as follows: “7. The Tamil Nadu Village Assistants Pension Rules, 1995 came into force with effect from 01.06.1995. Rule 4(a) of the Rules makes it clear that computing length of service for calculation of pension and gratuity, temporary, ofÏciating or permanent (full time) serviceshould be reckoned as qualifying service. As per rule 7(1), a Village Assistant would be eligible for pension, if he has rendered total qualifying service of ten years or more. Calculation of pension is also given in Rule 7(ii) and Rule 8 provides for Death cum Retirement Gratuity and Family Pension calculation is given under Rule, 9. If any person has retired after 01.06.1995 and if he has the qualifying service computed from the date of his original appointment, either temporary, ofÏciating or permanent basis, he will be entitled for pension, and the pensionwill be calculated in accordance with the Tamil Nadu Village Assistants Pension Rules, 1995. Hence, calculation of pension should be done on the basis of the Rules 7, 8 17 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 and 9 of the Tamil Nadu Village Assistants Pension Rules, 1995. 8. Prior to 01.06.1995, all the Village Assistants were in part time service only. They are all governed by the Tamil Nadu Village Assistants Pension Rules, 1995 and hence, their services upto 01.06.1995 cannot be taken into account for qualifying service under the said Tamil Nadu Village Assistants Pension Rules, 1995. Moreover, the Tamil Nadu Pension Rules, 1978, do not apply to them. Therefore, the Government have decided to file Review Petition against the orders third read above. 9. The Government after careful examination of the above case and decided to implement the Orders passed by the Hon'ble Madurai Bench of Madras High Court in W.P.Nos.6905 to 6908 of 2015 and W.P. (MD)Nos.7446 to 7449 of 2016 dated 12.07.2016 filed by the petitionersand accordingly directs that the respective part time services rendered by the petitioners Tvl.G.Ponnan, V.Vembulu, E.Arumugam, P.Alagarsamy, K.Pandi, R.Rajangam, V.Gurusamy and P.Thirugnanam prior to 01.06.1995 be taken into account for their pension calculation, and the pension may be granted to them from the date of issue of order as a special case, subject to the outcome of the Review Petition to be filed by the Government in this regard.” 17. From the above Government Order, it is evident that the Government wants to contend before this Court and in 18 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 every forum that the Village Assistants before 01.06.1995 were in part time service and that therefore, their services upto 01.06.1995 cannot be taken into account for qualif ying service under the pension Rules applicable to them, namely, the Village Assistants Pension Rules, 1995 . In para 7, the Government accepted the position that for computing length of service for retirement benefits, the service rendered by a person from the date oforiginal appointment either temporary, ofÏciating should be taken. However, para 8 is self- contradictory inasmuch as it suggests that all Village Assistants were engaged on part time basis . The service of Village Assistant is permanently required and it was always a full time job as held in several judgments. Despite the st and taken by the Government, the Government has implemented the order of this Court granting relief to several pers ons. It has been repeatedly held by this Court in number of judgment s without any controversy that the services rendered by Thalayaris till their service was regularised with effect from 01.06.1995 were on permanent basis . This Court has already considered the nature of job and the work rendered b y Thalayaris. It is to be noted that after the service of Th alayar is was regularised as Village Assistants with effect from 01.06.1995, the nature of duties were defined. Howeve r, the Thalayaris who were appointed earlier on consolidated pay were also doing full time job which can never be treated as temporary or part time. Since Thalayari in those days was a key man rendering valid assistance to revenue department and ofÏcials of Revenue Department, he could never be dispensed 19 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 with. When the respondents themselves have admitted Rule 4(a) of Tamil Nadu Village Assistants Pension Rules, 1995, there is no scope for confusion except the issue whether the appellant is entitled to count half of the services put in b y him in the cadre of Thalayari for the period upto 31.05.1995 or the entire period of service. In such circumstances, the judgment of Hon'ble Mr.Justice S.Vaidyanathan in M.Vellaian v. Secretary to Government, Department of Revenue and others may n ot hold good having regard to the specific provisions of Ta mil Nadu Village Assistants Pension Rules, 1995. Leave alone th e provisions of the Rules which have been given effect to or interpreted in several precedents including the two judgmen t relied upon by the learned Single Judge in this case in se veral judgments of Division Bench, this Court has taken a consist ent view that the petitioners are entitled to count 50% of th eir past service they have rendered as Thalayaris upto 31.05.1995 along with the regular service for the purpose of pens ion. It is admitted that the decisions of this Court by the Division Ben ch have been confirmed by the Hon'ble Supreme Court in sever al cases. It is also admitted that the Government has implemented the consistent view expressed by this Court in several individual cases. It was on account of the fact th at some of the precedents and the applicable rules have not b een brought forth by the Government Pleaders properly before some of the learned Judges of this Court, the issue which has been raised by the Government has been answered against the Government in several precedents and the ratio settled by this Court has been followed and implemented in several individual 20 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 cases by the Government. In such circumstances, this Court is of the view that there is no scope for reference to a larger Bench and that the order impugned in W.P.(MD) No.70 of 2019 is set aside. The Writ Petition in W.P.(MD)No.70 of 20 19 stands allowed in tune with the earlier precedents of this Court. The first respondent is directed to pass orders co unting 50% of the services of the appellant put in by him as Thala yari for the period from 07.01.1983 to 31.05.1995 for the purpose of calculation of pension along with regular services put in b y him as Village Assistant and Village Administrative OfÏcer and to send revised pension proposals within a period of six weeks from the date of receipt of a copy of this order.” (Emphasis Supplied) 16. The above view expressed by the Division Bench, with du e respect to the learned Judges on the Bench, does not speak about th e Tamil Nadu Village Assistants Pension Rules, 1995 (for short ‘Rules, 1995’), nor is t here consideration/deliberation of the provisions of the conduct, ser vice and pension rules, for the purpose of counting the past service, as th e Village Assistants form a separate cadre and provision of pension was conferred on t he basis of the aforesaid service, conduct and pension rules and the Ta mil Nadu Pension Rules, 1978 would have no application to the said posts. 21 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 17. However, in the aforesaid decision, the decision of a learned single Judge in Vellaiyan case (supra) was referred to and the Division Bench had rejected the reasoning recorded therein, but alas, without any advert to the provisions of Rules, 1995. Even a bare perusal of the orde r in Velmayil case shows that it could only be held to be more on sympathy rather than on the statutory prescriptions, as at one point, though a stand was taken by the Government that the post of Village Assistant was part- time till the date of their regularization on 1.6.1995, however, the nature of the job rendered by the Village Assistants had weighed in the mind of the Di vision Bench rather than the actual nature of service of the Village Assistants. In the absence of there being any discussion on Rules, 1995, which would form the basis for e xtending the benefit, the said decision cannot be held to be binding and the reliance placed on the same on behalf of the petitioner before the learned sin gle Judge leading to this reference is wholly erroneous. 18. One other order in State of Tamil Nadu & Ors. – Vs – Chinna Karuppaiah & Anr. (W.A. (MD) Nos. 1254 & 1255/2019 – Dated 1 9.11.2019), was relied upon, wherein another Division Bench had occa sion to consider the very same issue relating to counting the service of Village Assistants prior to their 22 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 regularization for the purpose of determining the qualifying service, which decision had been referred to in Balachandran & Krishnan cases (supra) . However, it is to be pointed out that the said decisi on would not stand relatable to the issue in the present case, as the said case res ted on the status of the service rendered by a Village Assistant, which is to be counted for the purpose of qualifying service, though the Division Bench has referred to the decision in K.Raman Nair case (supra). However, it is to be noted that the said decision also did not advert to Rules, 1995; rather the whole genesis of the case revolved around the Tamil Nadu Village Servants Conduct Rules and Tamil Nadu Village Servants Service Rules, which were relied on for the purpose of determining the qualifying service rendered by the Village Assistants prior to their services being regularized from 1.6.1995. Therefore, the said decision als o cannot be pressed into service in the facts of the present case. 19. Amidst the aforesaid decisions, a Full Bench was constitu ted to answer the following question of law, as was referred to it in Kaliyamoorthy case :- “In view of the provisions of the Tamil Nadu Pension Rules, as amended, if a Government servant is regularized in serv ice after 1.4.2003, whether such a person will be entitled to count 50% of the past service rendered prior to regularization f or the 23 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 purpose of computing his pension under the old pension scheme.” 20. Even at the very outset, it is to be pointed out that the issue before the Full Bench revolved around the application of Tamil Nadu Pension Rules, 1978, insofar as persons, who were granted regularization post 1.4.2003. However, the post of Village Assistants, which is the subject matter of the present lis, is covered under Rules, 1995 and the Tamil Nadu Pension Rules, 1978 has n o application to the case of Village Assistants. The Full Bench, in the aforesaid reference, analysing the various provisions of the Acts and Rules, more particularly governing the Government servants, who were covered unde r the Tamil Nadu Pension Rules, 1978, went on to record its reasoning and re ndering a finding as hereunder :- “29. Having regard to the above rule position, we procee d to examine the claim of the writ petitioners. Admittedly, the writ petitioners herein were appointed in various departmen ts 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 su ch service, they were paid daily wage or wages from the contingency fund. To be specific, the writ petitioners were no t appointed in a cadre post whether on temporary or permanent 24 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 basis against vacancies which were duly notified. They were appointed on daily wage basis prior to 01.04.2003 on var ious 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 wag e 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 a lso claimed equity on par with one Murugan, in whose favour, the Government passed G.O. (D) No.332, Environment and Fores t Department dated 19.11.2008 by which the service rendere d by the said Murugan, on daily wage basis for about 20 y ears 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, theGovernment 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 bas is along with his regular service. This had apparently sparked and/ or kick-started a volley of writ petitions to be filed before th is 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 ren dered 25 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 by the persons similarly placed like the petitioners along wit h their regular service, purportedly on the ground of eq uity. The State Government filed writ appeals before the Division Be nch of this Court, as against few cases in which such direction s were issued by the single Bench. * * * * * * * 31. On behalf of the writ petitioners, it was contended th at 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 p ost. We wish to observe that the word temporary or ofÏciating 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 clea r. A temporary appointment made to a government service is the one which is made in a post borne on the cadre of a serv ice, 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 tha t 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 26 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 tempora ry appointment can later be regularised by following the due procedure. The significance for invoking Rule 10 (a) (i), ap art from public interest, is the existence of sanctioned post or vacancy in a post borne on the cadre of a service, clas s or category. Thus, Rule 10 (a) (i) cannot be invoked in the absence of an existing vacancy in a cadre post. Therefore, w e 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 th e Tamil Nadu State and Subordinate Services . The writ petitioners were however appointed on daily wage basis on payment o f honorarium or consolidated pay and did not come within the fold of Rule 10 (a) (i) of the Tamil Nadu State and Subo rdinate 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 th e above capacity for determining qualifying service provided their service was regularized before 01.04.2003. Rule 11 (4) b y itself 27 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 wer e 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 2 003 for retirement benefits, if the absorption to service was befo re 01.04.2003. 37. Rule 11 (4) of the Tamil Nadu Pension Rules, 1978 allows a Government employee / servant appointed in a cadr e post before 01.04.2003 as per the Rules whether in te mporary 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 serv ice 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) Consolidate d pay; (iii) honorarium; or (iv) daily wage basis into his/he r services for determination of qualifying service. 28 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 b asis into his/her services even though such person may be entit led 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 Tam il 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 t o hisregular 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 require ment 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 cap acity mentioned above prior to 01.04.2003 since his regularisation is 29 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 provis o to Rule 2 of the Tamil Nadu Pension Rules, 1978 will not per s e bar a person from getÝng 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 wheth er on temporary or permanent basis. Services rendered befo re the cut off date of 01.04.2003, can be added to the re gular 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 ser vice 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 s ome 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 30 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 ins tance of similarly placed persons.” 21. As already stated above, the aforesaid decision of the Full Bench is with regard to Tamil Nadu Pension Rules, 1978, but the r atio laid down therein with regard to the manner in which a service in a post has to be appreciated in service jurisprudence has been clearly spelt out ther ein, wherein the Full Bench has held that for seeking the benefit of counting past service prior to regularisation, the post in which a person is accommodated shou ld be either temporary or ofÏciating or permanent and should be borne out of cadre of a service, class or category. In fine, there should be a cadre post within which the person should be fitted in, which alone would give a subsisting right to the said person to seek for counting of the said service upon regula rization. Insofar as persons appointed on daily wage basis or on payment of honorarium or consolidated pay and do not come within the purview o f a post borne out of a cadre, such persons would not be entitled to seek counting of past service in a post not borne out of a cadre. 31 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 22. The decision in Balachandran case, which forms the basis for the divergent views, had deliberated the decision of the Full Bench in Kaliayamoorthy case (supra) and the said decision sheds a great deal of light with respect to the post of Village Assistants/Talayaris and Village OfÏcers/Karn ams, their conditions of service and their entitlement to retirement benefits. In Balachandran case , reference has been made to the provisions of the Tamil Nadu Pension Rules, 1978, Tamil Nadu Village Servants Conduct Rules, 1980, Tamil Nadu Vill age Servants Conduct Rules, 1983 and Fundamental Rules and Tamil Nadu Leave Rules, 1978, for appreciating the stand for counting the period of service rendered prior to regularisation in the post of Village Assistant and for better understanding, the relevant portion is quoted hereunder :- “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 30 9 of the Constitution of India in supersession of the Tamil N adu Village OfÏcers Service Rules, 1970 and of the Tamil Nadu Village OfÏcers Service Rules, 1978. Thereafter, Tamil Nadu Village Servants Conduct Rules, 1983 came into the picture. These rules have been made applicable to all those appoin ted under the Madras Proprietary Estates' Village Service Act, 1894. Thus, these Rules were made applicable to the part-time 32 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 prio r to the regular service. Explanation to Rule 11 has been brough t forth with effect from 01.01.1979 and Rule 11(2) with effe ct from 15.04.1996 and Rule 11(3) with effect from 14.02.19 96. 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 conside r 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. * * * * * * * 10. The Tamil Nadu Pension Rules, 1978: 33 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 Rule 3(o) defines the 'qualifying service'. A 'qualifying service' would mean only permanent or ofÏciating 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 ofÏciating to be rendered in a post included in the pensionable establishment . The aforesaid provision isreproduced hereunder: “3(o) 'qualifying service' means permanent or ofÏciating 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 ofÏciating or temporary capacity. In the case of a Government servant retiring on or after the first October 1969, [***] temporary or ofÏciating 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. * * * * * * * (i) Service paid from contingencies shall be in a job involving whole time employment and not part-time for a portion of the day. 34 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 (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. * * * * * * * 11. The Tamil Nadu Village Servants Conduct Rules, 1980: These set of Rules are obviously prospective in nature. Ru le 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 emolument s for every year of total service put in by the person r eferred to in sub-rule (1). * * * * * * * 12. The Tamil Nadu Village Servants Conduct Rules, 1983:- These Rules deal with the conduct of the Village Servants, being partÝme Government servants. Under Rule 3, taking note of the employment being a part-time for Village Servant s, a concession has been given to facilitate taking up private 35 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 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 OfÏcer concerned if the work or occupation is confined to the chargevillage and fro m 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 afo resaid. As per the said Government Order, there is a change in s tatus 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 a nd Death -cum- Retirement Gratuity to such of those persons. This is the history and story of Village Assistants, who by their 36 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 persistent pleas, became a regular full-time Government servants due to the concession granted by the Governmen t on the recommendation made by the High Power Committee. * * * * * * * 19.Now, let us go into the subsequent Government Order s 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 pa y came into existence. This is a very important point to be n oted 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, ofÏciating and permanent (full-time) service alone should be reckoned as qualifying service. Now, this Rule ha s 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 fr amed 37 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 thereafter. Therefore, they cannot approbate and reprobate and it is only on their request, part-time service was conve rted into full-time service prospectively, creating the status of regular post with regular time scale of pay. * * * * * * * 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 difÏculty 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 ref erred 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.” (Emphasis Supplied) 23. From the above, it is clear that the posts of Village Assistants and Village OfÏcers were under part time employment, which a lone formed the basis for issuance of G.O. No.625 granting regularisation of service to the said employees holding the part-time posts of Village Assistant s. In fact, even in the decision in Velmayil case it has been the stand of the Government that the Village Assistants were under part-time employment. Howe ver, without appreciating the provisions of the relevant Rules governin g the conduct, service 38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 and pension of the Village Assistants, the Division Bench had negatived the contention, which is per se erroneous and arbitrary. 24. This Court had extracted the material portion of the decision in Balachandran case in which the Division Bench had dealt with the various provisions of the conduct, service and pension rules governing the Village Assistants and for the said reason, this Court is not inc lined to multiply the same by reproducing the same once over, but sufÏce to rely on the same to give its opinion on the reference. 25. True it is that a Division Bench judgment is binding on a coordinate Bench, but it is not as if that the binding nature could not be broken if the coordinate Bench could distinguish or establish that the e arlier decision was not on the touchstone of law applied to take it to its logica l conclusion. The Division Bench in Balachandran case though had occasion to deal with Velmayil and Chinna Karuppaiah case had clearly distinguished as not binding on it for the simple reason that the said decisions did not deliberat e on the nature of job rendered by the Village Assistants read harmoniously with the conduct, service and pension Rules relating to Village Assistants. Ther efore, once the decisions in 39 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 Velmayil and Chinna Karuppaiah case have not dealt with the provisions of the Rules governing the service, conduct and pension of the Village Assistants, the same cannot be said to be binding precedents for the Division Bench in Balachandran case to make any reference to a Larger Bench. Only on that premise, the Division Bench in Balachandran case had deliberated on the provisions of the relevant rules governing Village Assist ants and taken it to its logical conclusion. 26. In the said background, as afore stated, the provisions of the various Rules governing the conduct, service and Pension as also the provisions of the Tamil Nadu Pension Rules, 1978 have been taken into consideration in Balachandran case which paints a clear picture that the Village Assista nts were in part-time employment with concession to take up other employ ment, without interfering with their work upon obtaining prior permis sion. Therefore, by no stretch the employment of Village Assistants prior to 1.6.1995 could be said to be service borne out of a cadre post, as such employment was neither in a substantive vacancy nor temporary or ofÏciating as any post in a substantive vacancy or of a permanent nature, the same would not a llow the employees to take up other employment. 40 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 27. Further, there is a clear indication that the Tamil Nadu Pension Rules covers the persons under the employment in Government s ervice and only for that purpose separate rules in the form of Rules, 1995, have been framed for the purpose of granting pensionary benefits to the Village Assista nts. As already stated above, the Village Assistants are covered under t he Tamil Nadu Village Assistants Pension Rules and they would not fall within the ambit of the Tamil Nadu Pension rules, 1978, as the said rules are not applic able to the services of Village Assistants/Talayaris, they being in a non-pen sionable establishment and, that too, as part-time employees not borne in a cadre post. Further, when the service of Village Assistants/Talayaris prior to regula risation not being in a cadre post the said period cannot be counted for the purpose of pe nsion under the Tamil Nadu Village Assistants Pension Rules, as only emp loyees in temporary, ofÏciating and permanent posts are permitted to count the said service for arriving at the qualifying service, as is prescribed under Rule 4 (a) of Rules, 1995. Similar view has been expressed by the Full Bench relating to Government Servants under the Tamil Nadu Pension Rules, 1978, in Kaliyamoorthy case, which is pari materia to the service of Village Assistants/Talayarius and, th erefore, the Village Assistants would not be entitled to count their s ervice rendered in a part- 41 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 time employment prior to the regularisation of the post on 1.6 .1995 for the purpose of calculation of pensionary benefit. 28. Further, it is to be pointed out that the decisions in Velmayil and Chinna Karuppaiah case (supra) were prior to the decision of the Full Bench in Kaliyamoorthy case. Kaliyamoorthy case predominantly dealt with pensionable service of Government servants and the manner in which the service is to be counted after 1.4.2003. Further, as already pointed out above, the relevant provisions of Rules, 1995 and the Tamil Nadu Pension Rules, 1978 and so also the other Rules, which govern the conditions of service and condu ct of the Village Assistants were not taken into consideration in Velmayil and Chinna Karuppaiah case. 29. However, it is to be pointed out that to a significant extent, the decision in Raman Nair case sails along with the decision in Balachandran case to the extent that there is a clear finding in Raman Nair case that only posts which are borne out of a cadre to which a person is appointed temporarily or in an ofÏciating capacity or permanent employment (full time) al one are entitled to seek the benefit of counting their service in the post of Village Assistant, as 42 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 provided for under Rule 4 (a) of Rules, 1995, which is squarely the ratio laid down in Balachandran case . The issue of whether a person employed as part-time employee in the post of Village Assistant prior to 1.6.1995 was entitled to count his past services for the purpose of pensionary benefit was not the subject matter of consideration in the decision in Raman Nair case and, therefore, the said decision cannot be relied on by the Village Assistants to seek the relief granted therein so long as they have not been employed either temporarily or in an ofÏciating capacity or in a permanent post, which is borne out of the cadre and in a time scale of pay. 30. It is submitted by the learned Advocate General across the Bar that the post of Village Assistants is a part-time employment and onl y on benevolence, the Government had considered and regularised the services of the Village Assistants from 1.6.1995 and, therefore, the service of person s in the post of Village Assistants prior to 1.6.1995, by no stretch, could be held to be a post borne out of a cadre. Further, there is no material placed in the form of statutory prescription that the posts held by the Village Assistants are posts borne out of a cadre and carried time scale of pay and in the absence of such a material, 43 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 counting 50% of the said period rendered in a non-provincia lised service for the purpose of calculating the pensionary benefits would not arise. 31. The findings recorded in Balachandran case has clearly laid down the correct law, more particularly appreciating the ratio with regard to the legal position that only such of the posts borne out of cadre alone are entitled for pensionable benefit as has been enunciated in Kaliyamoorthy case with reference to qualifying service and further holding that the pe rsons employed in the said posts alone are entitled to seek for counting 50% of their servi ce rendered in the said post prior to regularisation for the purpose of pensionary benefit. However, the decisions in Velmayil and Chinna Karuppaiah case have not laid down the correct law as they have neither adverted to the posi tion of law relating to posts borne out of the cadre and also with reference to the p art-time employment of the Village Assistants and, therefore, the said decisions can only be said to be per incuriam as the relevant provisions of the various Rules governing the conduct, service and pension of Village Assistants have not been adverted to. 32. Further, as afore stated, the decision in Raman Nair case also would be of no help in advancing the case of Village Assistants for counting 50% of the 44 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 service rendered prior to 1.6.1995 for the purpose of arriv ing at the total service as, to a particular extent it supports the decision in Balachandran case. Furtherr, the said decision stands on an entirely different set of fact s which are specific to the said case and cannot be taken to be the factual position that could be discerned with regard to the post of Village Assistants enmasse, who were appointed on part-time basis prior to 1.6.1995. Further, th e appeal against the decision in Raman Nair case before the Apex Court in SLP (CC) No.21683/2009 having left the legal issue open, the said decision of th e Apex Court would not in any manner tilt the balance against the decision in Balachandran case to doubt the correctness of the said order nor would the decision of the Apex Court in any manner enure to the benefit of the case of the Village Assistants. 33. In fine, on the reasons aforesaid, this Court answers the reference in the following terms :- “The persons, who were employed as Village Assistants/Talayaris prior to 1.6.1995, the date on which the service of Village Assistants/Talayaris were regularised, would not be entitled to count 50% of their service rendered in the pre-regularised period, viz., prior to 1.6.1995, for the purpose pensionary benefits, as the 45 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 said posts held by them were part-time posts and not posts borne out of service or cadre.” 34. Though this Court is only required to answer the refe rence and send the matter back to the learned single Judge for further hearing, in view of the fact that the learned counsel for the parties have made their submissions not only on the merits of the case, but also on the basis of the fac ts in the present writ petition and have no objection to this Bench deciding the case, this Court would proceed to analyse the facts of the present case to find out whether the petitioner is entitled for seeking the said benefit by applyi ng the ratio laid down above. 35. A perusal of the materials available on record, more particularly, the communication addressed by the petitioner to the respondents se eking to count the period of service rendered by the petitioner as Village Assistant prior to 1.6.1995, it clearly shows that the petitioner himself has ad mitted that he was a part-time Village Assistant, as is evident from the sub ject of the communication. When the fact that the petitioner was a part-time Village Assistant has been admitted by the petitioner himself and the petitioner has admi tted that he was neither occupying the post of Village Assistant temporarily nor in an ofÏciating 46 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 capacity nor in a permanent capacity, which post is bor ne out of a cadre and, therefore, applying the answer to the reference, it c an safely be concluded that the petitioner is not entitled to have 50% of his service, rendered prior to 1.6.1995, counted for the purpose of calculating the pensionary benefits. Therefore, the relief sought for by the petitioner cannot be granted and necessarily this writ petition deserves to be dismissed. 36. Accordingly, this writ petition fails and the same stands d ismissed. There shall be no order as to costs. (G.J.J.) (M.D.I.J.) (K.B.J.) 06.04.2026 Index : Yes GLN 47 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 To 1. The Principal Secretary Department of Revenue Government of Tamil Nadu Secretariat, St. George Fort Chennai 600 009. 2. The Commissioner Revenue Administration Ezhilagam, Chepauk Chennai 600 005. 3. The District Collector OfÏce of District Collector Tiruppur, Tiruppur District. 4. The Tahsildar Dharapuram Taluk Tiruppur District. 48 https://www.mhc.tn.gov.in/judis ____________ W.P. No.17628/2018 DR.G.JAYACHANDRAN, J. M.DHANDAPANI, J. AND K.KUMARESH BABU, J. GLN PRE-DELIVERY ORDER IN W.P. NO.17628 OF 2018 Pronounced on 06.04.2026 49 https://www.mhc.tn.gov.in/judis