Case: UOI Vs. GANDIBA BEHERA

The respective High Courts, whose judgments are under appeal before us, have uniformly held in favour of the GDSs who subsequently were selected as regular employees of the postal department. The original applicants were not found eligible for pension as their services fell short of the qualifying 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 stipulatesthe 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 emoluments for every completed six monthly period of qualifying service.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, ED-Packer, Departmental runner, EDDA and GDS. The last of these designations 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 30 th 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 minimum qualifying service in the Group ‘D? post. The Tribunal, by an order passed on 6 th 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 Gandibais 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 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.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 6 th 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 near-identical. For these reasons, we do not consider it necessary to individually deal with each of these cases.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 subject-matter 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, (Multi-Tasking Staff) 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 17 th November 2016 (Vinod Kumar Saxena & Ors. Vs. Union of India & Ors.) and the Tribunal directedFor 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 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 5/8 th 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.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. 13675-13676 of 2015 (Union of India & Ors. Vs. The Registrar & Anr.) decided on 24 th November, 2015. The scope of the dispute of that appeal would appear from the following passage of therespondent 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 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.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 thatappellant-Union 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 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 ex-gratia 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.The respondents have also referred to clause 6 of the 2011 Rules whichSevaks shall not be entitled to any pension. However, they shall be entitled to ex-gratia gratuity or any other payment as may be decided by the Government from time toparticular Rule, making service of this category of employees non-pensionable however, has been struck down as unconstitutional by the Principal Bench of the Central Administrative Tribunal, New Delhi by a decision delivered on 17 th 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 to Civil Appeal No. 109-110 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 non-pensionable has been struck down is not of much

Reasoning: 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 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 23 rd 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 two-Judge 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 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 Full-Bench 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 work-charged employees. The said category of employees, i.e. work-charged 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 part-time 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 whole-time 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 pre-dated 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 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 constitute full-time 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 17 th 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 extra-departmental 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 accepted by this Court in the case of Union of India & Ors. Vs. Registrar & Anr.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 one time benefit in case of service of more than 3 months in fraction of aof power under the said Rules however comes within the decision making domain of the executive. The appellants? case has been that if such 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 Extra-Departmental 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 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 24 th 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 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).