Uoi vs Gandiba Behera

Records reveal that service is not complete in S.L.P. (C) Diary No.13464/2018, S.L.P.(C) No.16615/2018, 2 S.L.P.(C)No.3392/2019 and S.L.P.(C) Diary No.18007/2019. Hence these maters are directed to be de­tagged from this batch of appeals. Let these matters be placed before the appropriate Bench after completion of service.

3. All these appeals have reached this Court from decisions of different Benches of the Central Administrative Tribunal and thereafter judgments of the High Courts on a common question of law. The dispute in these appeals is as to whether services rendered by the employees in the postal department in the capacity of Gramin Dak Sevaks (GDS) ought to be computed or not for the purpose of calculation of the qualifying service of 3 their pension after they got selected in regular posts in the said department. 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 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.”

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.

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.

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.”

(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.”

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:

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:­

(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.