whether services rendered by the
employees in the postal department in the capacity of Gramin Dak Sevaks (GDS) ought to be computed or notfor the purpose of calculation of the qualifying service of their pension after they got selected in regular posts in
the said department. ?
Apex court held that
There is no provision under the law on thebasis 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.
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 underthe 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 thatexercise would be prolonged, recourse to Rule 88 oughtnot 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 hasalready 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 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
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8497/2019)
(Arising out of SLP(C) No. 13042 OF 2014)
UNION OF INDIA & ORS. ............. APPELLANTS
VERSUS
GANDIBA BEHERA ..............RESPONDENT
WITH
CIVIL APPEAL NO. 8979/2014
CIVIL APPEAL NO.8498/2019
(Arising out of SLP(C)No.979/2015)
CIVIL APPEAL NO. 9886/2014
CIVIL APPEAL NO. 8674/2015
CIVIL APPEAL NO..................../2019
(Arising out of SLP(C) CC. Nos. 2055720558/2015)
CIVIL APPEAL NO. 2825/2016
CIVIL APPEAL NO. 5008/2016
CIVIL APPEAL NO.8499/2019
(Arising out of SLP(C)No. 16767/2016)
1
CIVIL APPEAL NO. 8379/2016
CIVIL APPEAL NO. 15801581/2017
CIVIL APPEAL NO. 109110/2017
CIVIL APPEAL NO. 10355/2016
CIVIL APPEAL NO. 10801/2016
CIVIL APPEAL NO. 95189520/2017
Special Leave Petition (C) (D) No. 13464/2018
Special Leave Petition (C)No. 16615/2018
Special Leave Petition (C) No. 3392/2019
CIVIL APPEAL NO.8500/2019
(arising out of SLP(C) No.32881/2018)
CIVIL APPEAL NO.8501/2019
(arising out of SLP(C) No.6544/2019)
Special Leave Petition (C) (D) 18007/2019
J U D G M E N T
ANIRUDDHA BOSE, J.
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.
2. Delay condoned and leave is granted in SLP (C) CC
Nos. 2055720558 of 2015 and SLP (C) No.32881 of 2018.
Leave is also granted in rest of the petitions for
Special Leave to Appeal.
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.”
4. There have been separate Rules guiding the services
of Gramin Dak Sevaks who are also referred to as extradepartmental 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 1st April,
1968. He continued to work in that capacity until 25th
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 30th
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 3rd
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.
No.
Case Number Service Details of Original Applicants
1. Civil Appeal No. 8979
of 2014
08.08.1970–Joined as GDS. (Worked for 28
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
2015
11.08.1967 – Joined as GDS. (Worked for 29
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
of 2014
14.08.1972 – Joined as GDS. (Worked for
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
of 2015
14.09.1971 – Joined as GDS. (Worked for
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
of 2015 in SLP
(C) ....... of 2015
29.08.1981 – Joined as EDDA; (Worked for
16 years)
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
of 2016
25.02.1972 – Joined as GDS. (Worked for
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
of 2016
21.02.1979—Joined as GDS. (Worked for
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
2016
01.02.1963—Joined as GDS. (Worked for
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
of 2016
09.06.1967—Joined as EDMC. (Worked for
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.
1580-1581 of 2017
10.01.1963—Joined as Extra Departmental
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.
109-110 of 2017
22.06.1962—Joined as EDA. (Worked for
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.
10355 of 2016
Worked for 25 years as EDDA
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.
10801 of 2016
July 1972—Joined as EDMC. (Worked for
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
Nos. 9518-20 of 2017
14.07.1972—Joined as GDS. (Worked for
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
2018
25.01.1971—Joined as EDMP. (Worked for
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
2019
21.07.1972—Joined as EDDA. (Worked for
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 9th
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, interalia, 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 workcharged 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 halfyear 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
Apex court held that
There is no provision under the law on thebasis 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.
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 underthe 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 thatexercise would be prolonged, recourse to Rule 88 oughtnot 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 hasalready 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 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
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8497/2019)
(Arising out of SLP(C) No. 13042 OF 2014)
UNION OF INDIA & ORS. ............. APPELLANTS
VERSUS
GANDIBA BEHERA ..............RESPONDENT
WITH
CIVIL APPEAL NO. 8979/2014
CIVIL APPEAL NO.8498/2019
(Arising out of SLP(C)No.979/2015)
CIVIL APPEAL NO. 9886/2014
CIVIL APPEAL NO. 8674/2015
CIVIL APPEAL NO..................../2019
(Arising out of SLP(C) CC. Nos. 2055720558/2015)
CIVIL APPEAL NO. 2825/2016
CIVIL APPEAL NO. 5008/2016
CIVIL APPEAL NO.8499/2019
(Arising out of SLP(C)No. 16767/2016)
1
CIVIL APPEAL NO. 8379/2016
CIVIL APPEAL NO. 15801581/2017
CIVIL APPEAL NO. 109110/2017
CIVIL APPEAL NO. 10355/2016
CIVIL APPEAL NO. 10801/2016
CIVIL APPEAL NO. 95189520/2017
Special Leave Petition (C) (D) No. 13464/2018
Special Leave Petition (C)No. 16615/2018
Special Leave Petition (C) No. 3392/2019
CIVIL APPEAL NO.8500/2019
(arising out of SLP(C) No.32881/2018)
CIVIL APPEAL NO.8501/2019
(arising out of SLP(C) No.6544/2019)
Special Leave Petition (C) (D) 18007/2019
J U D G M E N T
ANIRUDDHA BOSE, J.
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.
2. Delay condoned and leave is granted in SLP (C) CC
Nos. 2055720558 of 2015 and SLP (C) No.32881 of 2018.
Leave is also granted in rest of the petitions for
Special Leave to Appeal.
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.”
4. There have been separate Rules guiding the services
of Gramin Dak Sevaks who are also referred to as extradepartmental 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 1st April,
1968. He continued to work in that capacity until 25th
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 30th
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 3rd
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.
No.
Case Number Service Details of Original Applicants
1. Civil Appeal No. 8979
of 2014
08.08.1970–Joined as GDS. (Worked for 28
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
2015
11.08.1967 – Joined as GDS. (Worked for 29
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
of 2014
14.08.1972 – Joined as GDS. (Worked for
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
of 2015
14.09.1971 – Joined as GDS. (Worked for
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
of 2015 in SLP
(C) ....... of 2015
29.08.1981 – Joined as EDDA; (Worked for
16 years)
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
of 2016
25.02.1972 – Joined as GDS. (Worked for
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
of 2016
21.02.1979—Joined as GDS. (Worked for
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
2016
01.02.1963—Joined as GDS. (Worked for
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
of 2016
09.06.1967—Joined as EDMC. (Worked for
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.
1580-1581 of 2017
10.01.1963—Joined as Extra Departmental
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.
109-110 of 2017
22.06.1962—Joined as EDA. (Worked for
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.
10355 of 2016
Worked for 25 years as EDDA
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.
10801 of 2016
July 1972—Joined as EDMC. (Worked for
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
Nos. 9518-20 of 2017
14.07.1972—Joined as GDS. (Worked for
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
2018
25.01.1971—Joined as EDMP. (Worked for
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
2019
21.07.1972—Joined as EDDA. (Worked for
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 9th
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, interalia, 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 workcharged 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 halfyear 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.
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