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Judgment
K.K.Ramakrishnan, J
These appeals have been filed to set aside the orders dated 19.03.2018, passed in W.P.(MD).Nos.5746, 5747, 5748 & 5749 of 2018.
The respondents were initially appointed as Thalayaris, which is a non-provincialised and part-time service. Subsequently, the said post of Thalayari was abolished and thereafter, the Government took a decision to accommodate the said 28,000 Thalayaris and appointed them as Village Assistants as per G.O.Ms.No.625 dated 06.07.1995, with effect from 01.06.1995 by redesignating the said post of Thalayari as a full-time post of Village Assistant and appointed eligible Thalayaris as Village Assistants. The writ petitioners were also absorbed as Village Assistants on 01.06.1995. After completion of their service without any blemish, they are retired as Village Assistants. For brevity and better appreciation of the case, the details of the petitioners’ service are tabulated as follows:
S.No
WA(MD)No. &
Name of the respondent
WP(MD)No.&
name of the Writ Petitioner
Period of Service as Thalayari
Date of absorption as Village Assistant
Date of Retirement as Village Assistant
1.
WA(MD)No.1032
WP(MD)No.5746
16.04.1982
01.06.1995-
30.04.2014
of 2025
of 2018
30.04.2014
(K.Suriliraj)
2.
WA(MD)No.1033
WP(MD)No.5747
13.11.1989
01.06.1995-
30.01.2017
of 2025 -
of 2018
30.01.2017
(K.Sethuraman)
3.
WA(MD)No.1034
WP(MD)No.5748
01.09.1975
01.06.1995-
31.05.2011
of 2025
of 2018
31.05.2011
(K.Koodalingam)
4.
WA(MD)No.1034
WP(MD)No.5749
14.04.1988
01.06.1995-
30.09.2016
of 2025
of 2018
30.09.2016
(S.Marichamy)
The writ petitioners claimed that the period of past service as Thalayari ought to be taken into account for computing pension. The Writ Court accepted the contention and allowed the writ petitions vide the impugned order dated 19.03.2018. Aggrieved by the same, the State filed the present intra-court appeals.
Thiru Mr.M.Ajmal Khan, learned Additional Advocate General, submitted that as per the rules applicable under the Tamil Nadu Village Assistant Pension Rules, 1995 and the Tamil Nadu Pension Rules, 1978, 50% of the non-provincialised service cannot be taken into account. Earlier, this Court, till the decision in W.A.(MD) No.1629 of 2018 and batch (hereinafter referred to as the “E. Balachandran case”), had directed that 50% of the Thalayari service is be reckoned for pensionary purposes. The said illegality was rectified by the Hon’ble Division Bench in the E. Balachandran case vide order dated 26.02.2021, holding that the non-provincialised and part-time service of Thalayari should not be taken into account. The said judgment was affirmed by the Hon’ble Supreme Court in SLP No.15406/2021. The Writ Court failed to consider and follow the above judgment and also failed to properly construe the Tamil Nadu Village Assistant Pension Rules, 1995, and erroneously allowed the writ petitions by directing the Government to sanction pension by taking into account 50% of the service rendered by the writ petitioners prior to 01.06.1995 as Thalayaris. Hence, the learned Additional Advocate General sought to set aside the impugned order.
5.Learned counsel appearing for the respondents/writ petitioners submitted that there are contra Division Bench judgments directing that 50% of the service rendered prior to 01.06.1995 as Thalayari be taken into account for pensionary benefits and therefore sought dismissal of the writ appeals.
6.Heard both side and perused entire records and relevent precedents cited .
It is true that there were contra judgments of this Court directing that 50% of the service rendered prior to 01.06.1995 as Thalayari be taken into account. However, subsequently, the Hon’ble Division Bench headed by the Hon'ble Thiru Justice M.M.Sundresh (as he then was) and Hon'ble Mrs.Justice S.Ananthi in E. Balachandran case, had revisited the entire provisions and after a detailed discussion, held that a Village Assistant is not entitled to the benefit of Rule 11(5) of the Tamil Nadu Pension Rules, 1978 or Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules, and is also not entitled to reckon 50% of part-time, non-provincialised Thalayari service for arriving at the pensionary benefits. The Court held so on the ground that the post of Thalayari is not pensionable under Rule 16 of the Tamil Nadu Village Servants Service Rules, 1980, and that the employee was absorbed only on 01.06.1995 after rendering service as a part-time Thalayari in a non-provincialised, non-pensionable establishment, in a non-existent cadre post. As per Rule 4(a) of the Tamil Nadu Village Assistant Pension Rules, 1995, only the service rendered in a full-time post carrying regular scale of pay shall be reckoned for qualifying service. Further, Rule 11(4) of the Tamil Nadu Pension Rules, 1978 has no application to Village Assistants absorbed only on 01.06.1995, as the prior Thalayari service was in a non-pensionable establishment, part-time in nature, and not in a cadre post, and there was no continuity of service. Since Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules applies only to temporary appointments made against existing cadre vacancies, the claim of the Village Assistant to invoke the said rule is misconceived, as he was not appointed as Thalayari under Rule 10(a)(i). There is also no provision under the Tamil Nadu Village Assistant Pension Rules, 1995 to reckon 50% of part-time, non-provincialised Thalayari service for pensionary benefits, and Rule 11(5) of the Tamil Nadu Pension Rules, 1978 is not applicable.
The said judgment of the Hon’ble Division Bench was confirmed by the Hon’ble Supreme Court in SLP No.15406/2021.
9.We also have in a similar situation, in Rev.Aplc.(MD) No.125 of 2022, dated 23.02.2023 considered the above precedents and Rules and held that the Village Assistants not entitled to reckon 50% service rendered by them in the post of Thalayari upto the date of 01.06.1995 and the relevant portion of Rev.Aplc.(MD) No.125 of 2022 reads as follows:
“4.This order came to be challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court has confirmed the order of the Division Bench. So, this has prompted the State now to file a review petition on the ground that the petitioner Ayyanan was initially appointed permanently the post of Thalayari only as a part time employee. He does not fall under the category of person eligible to count 50% of the past service. Such a benefit is only for a full time employee”.
The Writ Court has committed error in granting relief to the writ petitioners without any legal right under the rules applicable to Village Assistants. Therefore, in view of the above legal position, the impugned order cannot be sustained and is liable to be set aside.
Accordingly, all the writ appeals are allowed, the impugned orders are set aside, and the writ petitioners are held not entitled to the relief sought, namely, to take into account 50% of the service rendered as Thalayari for computing the pensionary benefits. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.