Uoi vs Gandiba Behera

period. The minimum service period in regular

employment in the said Department for being entitled to

pension is contained in Central Civil Services (Pension)

Rules, 1972 and it is 10 years. We shall refer to these

Rules henceforth as the 1972 Rules. In all these appeals,

service tenure of the respondents in regular posts fell

marginally short of the said period of 10 years. Clause 49

(1) of the 1972 Rules stipulates :­

“In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s

4 emoluments for every completed six monthly period of qualifying service.”

4. There have been separate Rules guiding the services

of Gramin Dak Sevaks who are also referred to as extra­

departmental agents in the postal department. The

present Rules which has been cited before us is titled

Gramin Dak Sevaks (Conduct and Engagement) Rules,

2011 (the 2011 Rules). There was P&T Extra

Departmental Agents (Conduct & Service) Rules, 1964

which prevailed earlier covering the same field before

replaced by Gramin Dak Sevaks (Conduct and

Employment) Rules, 2001. These Rules ultimately gave

way to the 2011 Rules. The GDSs have been identified in

different abbreviated designations over the period of time,

possibly depending on the nature of work they were

engaged in. These are EDMC, ED­Packer, Departmental

runner, EDDA and GDS. The last of these designations

5 being the short form of Gramin Dak Sevaks is what they

are known as at present.

5. The lead case which has been argued before us

arises from an application instituted by one Gandiba

Behera registered as O.A. No. 609/2010 before the

Central Administrative Tribunal, Cuttack Bench. The said

applicant was selected through regular process as a GDS

in Balasore division of the State of Orissa on 1 st April,

1968. He continued to work in that capacity until 25 th

May, 1999, from which date, he was engaged in a Group

‘D’ post in regular employment through the proper

selection process. This status as a Group “D” employee

was conferred on him retrospectively, by way of a

memorandum issued by the authorities on 30th December

1999. He attained the age of superannuation on 30 th

June, 2008. His claim for pension was, however, denied

on the ground of not having completed 10 years of

6 minimum qualifying service in the Group ‘D’ post. The

Tribunal, by an order passed on 6th July, 2011, upheld

the applicant’s plea for having part of his service

rendered in the capacity of GDS computed for meeting

the requirement of qualifying service, relying on an earlier

decision of the Tribunal delivered in O.A. No. 310 of 2010

(Sri Gouranga Ch. Sahoo Vs. Union of India and

Others). The Tribunal held and directed in the case of

Gandiba Behera:­

“It is not the case of the Respondents that the above order of this Tribunal has meanwhile been reviewed or reversed by any higher court. In view of the above, I find no justifiable reason to deviate from the view already taken by this Tribunal in the case of Gouranga Ch. Sahoo (supra). Hence the respondents are hereby directed to bring such of the shortfall period of service from the ED employment of the applicant to count for the purpose of minimum period of ten years qualifying service and accordingly sanction and pay the pension and pensionary benefits to the applicant from the date of his retirement forthwith preferably within a period of 60 (sixty) days from the date of receipt copy of this order; failing which, the applicant shall be entitled to 6% on the arrear pension and

7 pensionary dues from the date of his retirement till actual payment is made and the Respondents are free to recover the interest amount from the officer who would be found responsible for causing delay in payment.”

6. The Orissa High Court by a judgment delivered on 3 rd

January, 2014 in the writ petition brought by the Union

of India and the postal authorities found no reason to

interfere with the Tribunal’s order. The High Court

directed compliance of the said order of the Tribunal,

mainly relying on an earlier judgment of the Court

delivered on 6th December, 2011 in W.P. (C) No. 11665 of

2011.

7. In rest of the appeals, the factual disputes are similar

in nature. Points of law involved are also near­identical.

For these reasons, we do not consider it necessary to

individually deal with each of these cases. We, however,

give below the key factual features of the individual

appeals in a tabular form :­

8 S. Case Number Service Details of Original Applicants No.

1. Civil Appeal No. 8979 08.08.1970–Joined as GDS. (Worked for 28 of 2014 years) 31.12.1998 – Appointed to Group D post. 30.06.2008— Superannuated Qualifying Service Period: 9 years, 6 months, 1 day.

2. SLP (C) No. 979 of 11.08.1967 – Joined as GDS. (Worked for 29 2015 years) 18.10.1996 – Appointed to Group D post. 31.07.2006 – Superannuated Qualifying Service Period: 9 years, 8 months, 27 days.

3. Civil Appeal No. 9886 14.08.1972 – Joined as GDS. (Worked for of 2014 27 years) 06.09.1999 – Promoted as Postman (Group ‘C’ post).

28.02.2009 – Superannuated.

Qualifying Service Period: 9 years, 5 months, 11 days.

4. Civil Appeal No. 8674 14.09.1971 – Joined as GDS. (Worked for of 2015 28 years) 04.09.1999 – Appointed to Group D post. 30.11.2006 – Superannuated.

Qualifying Service Period: 7 years, 2 months, 13 days.

5. CC No. 20557-20558 29.08.1981 – Joined as EDDA; (Worked for of 2015 in SLP 16 years) (C) ....... of 2015 24.12.1997 – Appointed to Group D post.

31.05.2007 – Superannuated.

Qualifying Service Period: 9 years, 5

9 months, 23 days.

6. Civil Appeal No. 2825 25.02.1972 – Joined as GDS. (Worked for of 2016 31 years) 08.03.2003 – Selected as Postman.

31.10.2012 – Superannuated.

Qualifying Service Period: 9 years, 7 months, 23 days.

7. Civil Appeal No. 5008 21.02.1979—Joined as GDS. (Worked for of 2016 29 years) 13.06.2001—Joined as Postman.

31.10.2010—Superannuated.

Qualifying Service Period: 9 years, 4 months, 18 days.

8. SLP (C) No. 16767 of 01.02.1963—Joined as GDS. (Worked for 2016 29 years) 30.06.1992—Joined as Mail Peon.

31.01.2002—Superannuated.

Qualifying Service Period: 9 years, 7 months.

9. Civil Appeal No. 8379 09.06.1967—Joined as EDMC. (Worked for of 2016 34 years) 12.09.1997—Assumed charge as Postman. 31.03.2007—Superannuated.

Qualifying Service Period: 9 years, 6 months, 20 days.

10. Civil Appeal Nos. 10.01.1963—Joined as Extra Departmental 1580-1581 of 2017 Runner. (Worked for 29 years) 27.02.1992—Joined Group D post.

31.12.2000—Superannuated.

Qualifying service period: 8 years, 10 months, 3 days.

10

11. Civil Appeal Nos. 22.06.1962—Joined as EDA. (Worked for 109-110 of 2017 31 years) 15.11.1993—Joined Group D post.

31.03.1997—Superannuated.

Qualifying Service Period: 5 years, 4 months, 15 days.

12. Civil Appeal No. Worked for 25 years as EDDA 10355 of 2016 09.11.2001—Selected and appointed as Postman.

30.06.2011—Superannuated.

Qualifying Service Period: 9 years, 7 months, 21 days.

13. Civil Appeal No. July 1972—Joined as EDMC. (Worked for 10801 of 2016 27 years) 15.09.1999—Joined Group D post.

31.05.2009—Superannuated.

Qualifying Service Period: 9 years, 8 months, 16 days.

14. 14(i) Civil Appeal 14.07.1972—Joined as GDS. (Worked for Nos. 9518-20 of 2017 30 years) 25.11.2002—Joined Group D post.

30.06.2012—Superannuated.

Qualifying Service Period: 9 years, 7 months, 6 days.

14(ii) 05.11.1973—Joined as EDMCA. (Worked for 23 years) 17.04.1997—Joined as Postman.

31.12.2006—Superannuated.

Qualifying Service Period: 9 years, 8 months, 15 days.

14(iii) 01.11.1971—Became EDM-I. (Worked for 28 years) 03.11.1999—Joined in Group D post.

11 31.07.2009—Superannuated.

Qualifying Service Period: 9 years, 8 months, 29 days.

15. SLP (C) No. 32881 of 25.01.1971—Joined as EDMP. (Worked for 2018 28 years) 27.11.1999—Joined Group D post.

31.08.2009—Superannuated.

Qualifying Service Period: 9 years, 8 months, 19 days.

16. SLP (C) No. 6544 of 21.07.1972—Joined as EDDA. (Worked for 2019 31 years) 06.08.2003—Joined Group D post.

30.06.2011—superannuated.

Qualifying Service Period: 7 years, 10 months, 9 days.

8. Learned counsel for the appellants has assailed the

decision of the Orissa High Court in the case of Gandiba

Behera (supra) affirming the Tribunal’s order mainly on

the ground that service undertaken as GDS could not be

equated with regular service. Service of a GDS carries

lower working hours (between 3­5 hours). An incumbent

engaged as Gramin Dak Sevak (GDS) is also entitled to

pursue any other vocation simultaneously. It has also

12 been highlighted on behalf of the appellants that services

of Gramin Dak Sevaks are regulated by a different set of

rules and Court ought not to direct the administration or

executive authorities in the capacity of employer to create

an altogether new service Rule for a particular set of

employees.

9. In the case of Superintendent of Post Offices and

Others v. P.K. Rajamma [(1977) 3 SCC 94], it was laid

down that Extra­Departmental Agents connected with the

postal departments held civil posts. That finding was

given while dealing with applicability of Article 311 of the

Constitution in relation to dismissal orders passed

against the Extra­Departmental Agents. In the case of

Chet Ram vs. Jit Singh [(2008) 14 SCC 427], this

Court examined the question as to whether a GDS is a

government servant or not. This issue came up for

consideration before this Court in a dispute concerning

13 eligibility of a GDS to become a member of Nagar

Panchayat in terms of the Punjab State Election

Commission Act, 1994. The opinion of the Court was that

such agents were government servants holding civil

posts. The Constitution Bench judgment in the case of

D.S. Nakara & Ors. vs. Union of India [(1983) 1 SCC

305] was also cited on behalf of the respondents in

support of their stand that there could be no

discrimination between two sets of pensioners.

10. A set of GDSs who stood absorbed as Group ‘D’

employees had approached this Court invoking the

jurisdiction of the Court under Article 32 of the

Constitution of India seeking benefits akin to the ones

which form the subject­matter of these appeals. That

petition was registered as Writ Petition (Civil) No.

17/2009. The Rule involved in that writ petition was

Department of Posts, (Multi­Tasking Staff)

14 Recruitment Rules, 2010. There was specific provision

in the said Rules for declaring GDSs as holders of civil

posts but they were outside regular civil service. The said

writ petition was disposed of by an order passed on 9 th

December, 2014 giving the writ petitioners liberty to

approach the Central Administrative Tribunal, Principal

Bench, New Delhi. Subsequently, three applications were

instituted before the Principal Bench of the Tribunal.

These were registered as O.A. Nos. 749/2015, 3540/2015

and O.A. No. 613/2015. The applications of the

individual GDSs were allowed by the Tribunal. The

decision in that regard was delivered on 17th November

2016 (Vinod Kumar Saxena & Ors. Vs. Union of India

& Ors.) and the Tribunal directed :­

“(a) For all Gramin Dak Sevaks, who have been absorbed as regular Group ‘D’ staff, the period spent as Gramin Dak Sevak will be counted in toto for the purpose of pensionary benefits.

(b) Pension will be granted under the provisions of CCS (Pension) Rules, 1972 to all Gramin Dak

15 Sevaks, who retire as Gramin Dak Sevak without absorption as regular Group ‘D’ staff, but the period to be counted for the purpose of pension will be 5/8th of the period spent as Gramin Dak Sevak. Rule 6 will accordingly be amended.

(c) The Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 are held to be valid except Rule 6, as stated above.

(d) The claim of Gramin Dak Sevaks for parity with regular employees regarding pay and allowances and other benefits available to regular employees, stands rejected.”

11. A Bench of this Court presided over by one of us

(Hon’ble Justice Ranjan Gogoi) has examined a similar

question in Civil Appeal Nos. 13675­13676 of 2015

(Union of India & Ors. Vs. The Registrar & Anr.)

decided on 24th November, 2015. The scope of the dispute

of that appeal would appear from the following passage of

the judgment:­

“The respondent no. 2 viz. N.S. Poonusamy worked as an Extra Departmental Agent in the Postal Department from the year 1968 to 1993. He was regularized on 01.04.1993 and retired on 31.05.2002. The second respondent had completed nine years and two months of service but he was not granted any pension. Therefore, he approached the learned Tribunal which

16 directed that a scheme be framed to give some benefit of service rendered by such employees as Extra Departmental Agents so as to enable them to earn the requisite period of qualifying service for pension i.e. 10 years. Aggrieved, the Union of India moved the High Court by way of a writ petition out of which these appeals have arisen.”

12. Such direction was issued by the Tribunal, inter­

alia, on the basis of a circular of DoPT issued in the year

1991. The said circular provided that service rendered by

an Extra Departmental Agent to the extent of 50% of the

period thereof was to be added to the period of regular

service for the purpose of entitlement to pension. During

pendency of the appeal, however, the Central

Government had issued order granting regular pension to

the Respondent No.2 in that appeal.

13. Allowing the appeal of the Union of India, it was

held by this Court in that case:­

“The appellant­Union of India has filed an additional affidavit on 26.10.2015 stating inter alia that the Extra Departmental Agents covered by the DOP&T Circular, 1991, are full time casual

17 employees, whereas the second respondent is a part time casual employee and under the Rules governing his service framed in the year 1964 and amended in the years 2001 and 2011, employees like the respondent no. 2 are required to render between three to five hours of service every day. At the time of their appointment they are required to give an undertaking to the effect that they have alternative source of income to support their families. The need for appointment of such employees, according to the Union of India, is to reach out to the addresses in far flung villages in the country where establishment and maintenance of a regular post office is not a viable proposition. Attention is also drawn to the provisions of the aforesaid Rules to the effect that such employees are not entitled to pension but would be entitled to ex­gratia gratuity and such of the payments as may be decided by the Government from time to time. Considering the fact that the DOP&T Circular, 1991, which form the basis of the impugned direction of the learned Tribunal as affirmed by the High Court, pertained to full time casual employees to which category the second respondent does not belong and the provisions of the Rules governing the conditions of service of the respondent as noted above, we are of the view that the impugned directions ought not to have been passed by the learned Tribunal and approved by the High Court. The matter pertains to policy and involved financial implications. That apart, in view of the facts placed before us, as noted above, we deem it proper to interfere with the impugned directions and allow these appeals filed by the Union of India. We, however, make it clear that the pension granted to the second respondent will not be affected by this order and the said respondent will continue to enjoy the benefit of pension in accordance with the provisions of law.”

18

14. The respondents have also referred to clause 6 of the

2011 Rules which stipulates:­

“The Sevaks shall not be entitled to any pension. However, they shall be entitled to ex­gratia gratuity or any other payment as may be decided by the Government from time to time.”

This particular Rule, making service of this category

of employees non­pensionable however, has been struck

down as unconstitutional by the Principal Bench of the

Central Administrative Tribunal, New Delhi by a decision

delivered on 17th November, 2016. We are apprised in

course of hearing of these appeals by the learned counsel

for the Central Government that the said decision of the

Tribunal has been challenged before the Delhi High Court

by the Union of India by way of a Writ Petition, registered

as W.P. (C) No. 832 of 2018. We are also informed that no

effective order has as yet been passed by the Delhi High

Court in the said writ petition. In the judgment giving rise

19 to Civil Appeal No. 109­110 of 2017, a similar provision

of the 1964 Rules, being Clause 4 thereof has also been

invalidated by the Punjab & Haryana High Court. Though

the fact that the service of GDS was not pensionable was

one of the factors considered by this Court in the case of

Union of India & Ors. Vs. Registrar & Anr. (supra), that

was not the main reason as to why the plea of the GDS

was turned down by this Court. We have reproduced

above the relevant passages from the said judgment

containing the reasoning for allowing the appeal. For

adjudication of this set of appeals, thus the proceeding in

which the Rule making service of GDS non­pensionable

has been struck down is not of much relevance. The

controversy which we are dealing with in this judgment is

whether the period of service rendered by a regular staff

of the postal department while he was serving as GDS

20 would be computed for the purpose of determining his

qualifying service to entitle him to get pension.

15. The case of D.S. Nakara (supra) has been relied

upon on behalf of the respondents in support of their

contention that there cannot be any artificial

discrimination between two groups of pensioners. But the

factual context of the case of D.S. Nakara (supra) is

different. The discrimination which was challenged in

that case related to two sets of retired Armed Forces

personnel who were categorised on the basis of their

dates of retirement and one set had better terms of

pension. The decisions in the cases of P.K. Rajamma

(supra) and Chet Ram (supra) are for the proposition

that the respondents held civil posts as GDS and were

government servants. But again ratio of these authorities

cannot be applied to combine the services rendered by

GDSs in posts guided by an altogether different service

21 rule with their services in regular employment. The other

authority on which reliance has been placed on behalf of

the respondents is a judgment of this Court delivered on

23rd August, 2017 in the case of Habib Khan v. State of

Uttarakhand and Others [2018 (1) SLR 724 (SC)]. That

case arose out of a similar dispute involving a work­

charged employee of the State of Uttarakhand who

wanted his service in that capacity counted for

computing the qualifying service in regular post on the

question of grant of pension. This judgment was also

delivered by a two­Judge Bench of which Hon’ble Justice

Ranjan Gogoi, before His Lordship assumed the post of

Chief Justice of India, was a member. The aforesaid

decision followed an earlier judgment of this Court

delivered in the case of Punjab State Electricity Board

and Another v. Nakara Singh and Another [(2010) 4

SCC 317]. The latter case arose out of similar claims of

22 work charged employees who were engaged in the

Irrigation and Power Department of the State of Punjab.

The relevant provision of the Punjab Civil Services Rules

allowed temporary or officiating service under the State

Government without interruption followed by

confirmation in the same or another post to be counted

in full as qualifying service but excluded the period of

service in work charged establishment. The aforesaid

Rule was struck down by the Full­Bench of the Punjab

and Haryana High Court. The decision of this Court in

the case of Nakara Singh (supra) was however founded

on two circulars which permitted counting the period of

service rendered by a work charged employee in the

Central Government or the State Government for the

purpose of computing pensionary benefits as an

employee of the Punjab State Electricity Board. The

respondents in these appeals also cannot be held to be

23 work­charged employees. The said category of employees,

i.e. work­charged employees are engaged against specific

work and their pay and allowances are chargeable to

such work. But the scope of respondents’ work as GDS

was part­time in nature. They had the liberty to engage

themselves in other vocations, though the work they

involved in carried an element of permanency. The fact

that they were engaged as GDSs which constituted civil

posts cannot by implication treat their service having

whole­time characteristic to be an extension of their

service rendered in the capacity of GDSs. The

subsequent service was guided by different service Rules

having different employment characteristics. The

selection of an employee in regular post cannot also be

pre­dated because of delay on the part of the authorities

in holding the selection process. We do not agree with

the view of the High Court on this count in judgments

24 which form subject of appeal in Civil Appeal No. 5008 of

2016, SLP(C)No.16767 of 2016, Civil Appeal No. 8379 of

2016 and Civil Appeal No. 10801 of 2016. Service tenure

of an employee in a particular post cannot be artificially

extended in that manner in the absence of any specific

legal provision.

16. In the case of Union of India & Ors. v the

Registrar & Anr. (supra), a plea similar to that made by

the GDSs for computation of service in that capacity was

specifically rejected. There is no specific Rule or even

administrative circular specifying computation of service

period rendered as GDS to fill up the gap in the

qualifying service requirement of the respondents in this

set of appeals. The only circular on which the

respondents laid stress on was the 1991 circular which

was considered in the case of Union of India & Ors. v.

Registrar & Anr. (supra). As the post of GDS did not

25 constitute full­time employment, the benefits of the said

circular cannot aid the respondents. Thus, there being a

clear cut finding on similarly placed employees, we do not

think we can apply the ratio of the judgment delivered in

the case of Habib Khan (supra) in support of the

respondents’ plea. An unreported judgment of Karnataka

High Court delivered on 17th June, 2011 in the case of

W.P. No. 81699/2011 Union of India and Others Vs.

Dattappa has also been cited on behalf of the

respondents. This judgment went in favour of counting

the period of service as extra­departmental Agent for

qualifying service in relation to pension and the Division

Bench of the Karnataka High Court proceeded on the

basis that for all intents and purpose, the employment

was continuous in nature and it was not as if it was from

one service to another. But, this view has not been

26 accepted by this Court in the case of Union of India &

Ors. Vs. Registrar & Anr. (supra).

17. It is also the respondents’ case that under Clause

49(3) of the 1972 Rules, if they had served more than 9

years and 3 months in regular employment, they would

be entitled to have additional period computed for the

purpose of qualifying service. Said Rule 49(3) specifies: ­

“In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half­ year and reckoned as qualifying service.”

Arguments were advanced that if within a period of

one year an employee had served more than six months,

then the total employment term ought to be computed as

twice the period of one half year in two tranches and one

year ought to be added to the service. But on a plain

reading of the said Rule, in our view such an

interpretation cannot be given. The Rule contemplates

27 one time benefit in case of service of more than 3 months

in fraction of a year.

18. Rule 88 of the 1972 Rules empowers the concerned

ministry or the department to relax the operation of any

Rule to prevent undue hardship in a particular case. This

provision as embodied in Rule 88, provides:­

“88. Power to relax.

Where any Ministry or Department of the Government is satisfied that the operation of these rules, causes undue hardship in any particular case, that Ministry or Department, as the case may be, may, by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner:

Provided that no such order shall be made except with the concurrence of the Department of Pension & Pensioner’s Welfare.”

Exercise of power under the said Rules however

comes within the decision making domain of the

executive. The appellants’ case has been that if such

28 power to relax is exercised in each case of marginal

shortfall in qualifying service, that would constitute an

endless exercise.

19. Having regard to the provisions of the aforesaid

Rules relating to qualifying service requirement, in our

opinion the services rendered by the respondents as GDS

or other Extra­Departmental Agents cannot be factored in

for computing their qualifying services in regular posts

under the postal department on the question of grant of

pension. But we also find many of the respondents are

missing pension on account of marginal shortfall in their

regular service tenure. This should deserve sympathetic

consideration for grant of pension. But we cannot trace

our power or jurisdiction to any legal principle which

could permit us to fill up the shortfall by importing into

their service tenure, the period of work they rendered as

GDS or its variants. At the same time, we also find that

29 in the case of Union of India & Ors. v. The Registrar &

Anr. (supra), though the incumbent therein (being

respondent no.2) had completed nine years and two

months of service, the Union of India had passed orders

granting him regular pension. This Court in the order

passed on 24th November 2015 had protected his pension

though the appeal of Union of India was allowed.

20. For the reasons we have already discussed, we are of

the opinion that the judgments under appeal cannot be

sustained. There is no provision under the law on the

basis of which any period of the service rendered by the

respondents in the capacity of GDS could be added to

their regular tenure in the postal department for the

purpose of fulfilling the period of qualifying service on the

question of grant of pension.

21. We are also of the opinion that the authorities ought

to consider their cases for exercising the power to relax

30 the mandatory requirement of qualifying service under

the 1972 Rules if they find the conditions contained in

Rule 88 stand fulfilled in any of these cases. We do not

accept the stand of the appellants that just because that

exercise would be prolonged, recourse to Rule 88 ought

not to be taken. The said Rules is not number specific,

and if undue hardship is caused to a large number of

employees, all of their cases ought to be considered. If in

the cases of any of the respondents’ pension order has

already been issued, the same shall not be disturbed, as

has been directed in the case of Union of India & Ors. v

Registrar & Anr. (supra). We, accordingly allow these

appeals and set aside the judgments under appeal,

subject to the following conditions:­

(i) In the event the Central Government or the postal department has already issued any order for pension to any of the respondents, then such pension should not be disturbed. In

31 issuing this direction, we are following the course which was directed to be adopted by this Court in the case of Union of India & Ors. v. Registrar & Anr.(supra).

(ii) In respect of the other respondents, who have not been issued any order for pension, the concerned ministry may consider as to whether the minimum qualifying service Rule can be relaxed in their cases in terms of Rule 88 of the 1972 Rules.

22. Interim orders passed in these appeals, if any, shall

stand dissolved. All connected applications shall stand

disposed of.

23. There shall be no order as to costs.

.........................................CJI (Ranjan Gogoi)

..........................................J (Deepak Gupta)

..............................…........J (Aniruddha Bose) New Delhi Dated: November 08, 2019.

32