Supreme Court of India
UNION OF INDIA & ORS.versusGANDIBA BEHERA
- Citation
- 2019 INSC 1226
- Decided
- 8 November 2019
- Disposal
- Appeal(s) allowed
- Bench
- RANJAN GOGOI
Holding
Service rendered as a Gramin Dak Sevak or other extra‑departmental agent cannot be counted towards the qualifying service required for pension under the Central Civil Services (Pension) Rules, 1972.
Summary
The petitioners, Union of India and others, challenged several High Court judgments that had allowed Gramin Dak Sevaks (GDS) who were later regularised as Group D or other regular postal employees to count their GDS service towards the ten‑year qualifying service required for pension under the Central Civil Services (Pension) Rules, 1972. The respondents, former GDSs, argued that their part‑time, extra‑departmental service should be treated as full‑time service for pension eligibility. The Supreme Court examined the nature of GDS employment, the relevant pension rules, and the power under Rule 88 to relax qualifying service requirements. It held that GDS service, being part‑time and governed by separate rules, cannot be counted towards qualifying service for pension, and there is no statutory provision permitting such inclusion. However, the Court directed that where a pension order has already been issued it should not be disturbed, and for other cases the Ministry may consider exercising Rule 88 to relax the requirement. The appeals were allowed and the lower court judgments set aside.
Issues considered
- Whether service rendered as Gramin Dak Sevak (GDS) can be counted towards the qualifying service period for pension under the Central Civil Services (Pension) Rules, 1972.
- Whether Rule 88 of the 1972 Rules empowers the government to relax the qualifying service requirement in cases of marginal shortfall.
- Whether the High Courts erred in holding that GDS service could be treated as regular service for pension purposes.
Legislation cited
Subjects
pensionqualifying serviceGramin Dak SevakCentral Civil Services (Pension) RulesRule 88extra‑departmental agentservice lawwork‑charged employee
Judgment
1136 [2019]REPORTS
SUPREME COURT 13 S.C.R. 1136 [2019] 13 S.C.R.
A UNION OF INDIA & ORS.
v.
GANDIBA BEHERA
(Civil Appeal No. 8497 of 2019)
B NOVEMBER 08, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
ANIRUDDHA BOSE, JJ.]
Service law:
C Central Civil Services (Pension) Rules, 1972: Pension –
Qualifying years of service – Calculation of – Services rendered by
employees in the postal department as Gramin Dak Sevaks (GDS)
after they got selected in regular posts in the said department –
Computation for determining their qualifying service for entitlement
to pension – Held: Services rendered by the respondents as GDS or
D
other Extra–Departmental Agents cannot be factored in for
computing their qualifying services in regular posts under the postal
department for the grant of pension – On facts, respondents not
found eligible for pension as their services fell short of the qualifying
period of 10 years – Employees deserve sympathetic consideration
E for grant of pension if undue hardship is caused to them – Authorities
to consider their cases for exercising the power to relax the
mandatory requirement of qualifying service under the 1972 Rules
– In case pension order has been issued to the respondent, the same
shall not be disturbed – As regards, other respondents, who have
not been issued any order for pension, the department to consider
F
their cases – Gramin Dak Sevaks (Conduct and Engagement) Rules,
2011.
Allowing the appeals, the Court
HELD: 1.1 The respondents cannot be held to be work–
G 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– Gramin Dak Sevaks was part–
time in nature. They had the liberty to engage themselves in
other vocations, though the work they involved in carried an
H
1136
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1137
element of permanency. The fact that they were engaged as GDSs A
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
B
regular post cannot also be pre–dated because of delay on the
part of the authorities in holding the selection process. The
respective High Courts, whose judgments are under appeal before
this Court, 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 C
pension as their services fell short of the qualifying period. The
view of the High Court cannot be accepted on this count in
judgments which form subject of appeal. Service tenure of an
employee in a particular post cannot be artificially extended in
that manner in the absence of any specific legal provision.
D
[Para 15][1149-G-H; 1150-A-C]
1.2 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. The only circular on which the respondents laid
stress on was the 1991 circular which was considered in the case E
of Union of India & Ors. v. Registrar & Anr. As the post of GDS
did not constitute full–time employment, the benefits of the said
circular cannot aid the respondents. [Para 16][1150-D-E]
1.3 It was respondents’ case that under Clause 49(3) of the
1972 Rules, if they had served more than 9 years and 3 months F
in regular employment, they would be entitled to have additional
period computed for the purpose of qualifying service. It was
submitted 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 G
tranches and one year ought to be added to the service. However,
on a plain reading of the said Rule, such an interpretation cannot
be given. The Rule contemplates one time benefit in case of
service of more than 3 months in fraction of a year. [Para 17][1151-
B-C]
H
1138 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 1.4 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. 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 power to relax is exercised in each case of marginal shortfall
B
in qualifying service, that would constitute an endless exercise.
[Para 18][1151-D, G]
1.5 Having regard to the provisions of the Rules relating
to qualifying service requirement, the services rendered by the
respondents as GDS or other Extra–Departmental Agents cannot
C be factored in for computing their qualifying services in regular
posts under the postal department on the question of grant of
pension. But it is found that many of the respondents are missing
pension on account of marginal shortfall in their regular service
tenure. This should deserve sympathetic consideration for grant
D of pension. But this Court cannot trace its power or jurisdiction
to any legal principle which could permit to fill up the shortfall by
importing into their service tenure, the period of work they
rendered as GDS or its variants. In view thereof, 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
E 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. [Para 19, 20][1151-G-H; 1152-A-D]
1.6 The authorities ought to consider their cases for
F 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. The
stand of the appellants cannot be accepted just because that
exercise would be prolonged, recourse to Rule 88 ought not to
G 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. 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, following the course which was directed
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1139
to be adopted by this Court in the case of Union of India & Ors. A
v. Registrar & Anr. 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. [Para 21][1152-E-F; 1153-A]
B
Union of India & Ors. vs. The Registrar & Anr. Civil
Appeal Nos. 13675–13676 of 2015 – relied on.
D.S. Nakara & Ors. vs. Union of India (1983) 1 SCC
305 : [1983] 2 SCR 165 – distinguished.
Superintendent of Post Offices and Others v. P.K. C
Rajamma (1977) 3 SCC 94 : [1977] 3 SCR 678; Chet
Ram vs. Jit Singh (2008) 14 SCC 427 : [2008] 14 SCR
1124; Habib Khan v. State of Uttarakhand and Others
(2018) 1 SLR 724 (SC) – held inapplicable.
Punjab State Electricity Board and Another v. Nakara D
Singh and Another (2010) 4 SCC 317 : [2010] 3 SCR
27; Union of India and Others vs. Dattappa W.P. No.
81699/2011 – referred to.
Case Law Reference
E
[1977] 3 SCR 678 Held inapplicable Para 15
[2008] 14 SCR 1124 Held inapplicable Para 15
[1983] 2 SCR 165 Distinguished Para 15
(2018) 1 SLR 724 (SC) Held inapplicable Para 16
F
[2010] 3 SCR 27 Referred to Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8497
of 2019.
From the Judgment and Order dated 03.01.2014 of the High Court
of Orissa at Cuttack in Writ Petition (C) No. 28905 of 2011. G
With
Civil Appeal Nos. 8979, 9886 of 2014, 8674 of 2015, 2825, 5008,
8379, 10355, 10801 of 2016, 1580-1581, 109-110, 9518-9520 of 2017,
8498, 8499, 8500, 8501 of 2019, S.L.P.(C) No. 16615/2018, 3392 of 2019,
H
1140 SUPREME COURT REPORTS [2019] 13 S.C.R.
A SLP (C). CC Nos.20557-20558/2015, S.L.P.(C) D. No. 13464/2018,
S.L.P.(C) D. No. 18007/2019.
A.N.S. Nadkarni, ASG, Ms. Kiran Suri, Sr. Adv., Shankar Divate,
Meru Sagar Samantray, Jai Dehadarai, Mrs. Anil Katiyar, Shekhar
Dwivedi, T. A. Khan, Gurmeet Singh Makker, Arvind Kumar Sharma,
B Mukesh K. Giri, Jitendra Mohapatra, Kedar Nath Tripathy, Ms. Reena
Rao, Sandiv Kalia, Srilok Nath Rath, Abhishek Aanand Rai, Dr. Sushil
Balwada, Sanjay Kumar Visen, Mrs. K. Sarada Devi, R. Vijay Nandan
Raddy, Amarjeet Singh Dheman, S. R. Setia, Joydeep Mukerjee,
Ms. Seema Kashyap, P. R. Kovilan, Mrs. Geetha Kovilan, Ms. Lakshmi
K.G., Vijay Prakash, Abid Ali Beeran P, S.K. Sinha, James P. Thomas,
C B.K. Bereva, Md. Apzal Ansari, Mukesh K. Verma, Vivek Sharma,
Harsh Singhal, Anis Ahmed Khan, V. N. Raghupathy, Maneder Pal Gupta,
Azhar Qayum, K.V. Jagdishvaran, Ms. G. Indira, Ms. Rangoli Seth,
Ashwani Kumar, Beno Bencigar, Parijat Kishore, Puneet Kumar Saxena,
Kamalkant Tripathi, Rameshwar Prasad Goyal, Vedant Singh, Michelle
D Gomes, Nikilesh Ramachandran, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
1. Records reveal that service is not complete in S.L.P. (C) Diary
E No.13464/2018, S.L.P.(C) No.16615/2018, S.L.P.(C)No.3392/2019 and
S.L.P.(C) Diary No.18007/2019. Hence these maters are directed to be
de-tagged 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.
F 20557-20558 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
G 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 their pension after they got selected in regular posts
in the said department. The respective High Courts, whose judgments
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1141
[ANIRUDDHA BOSE, J.]
are under appeal before us, have uniformly held in favour of the GDSs A
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
B
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 C
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.”
4. There have been separate Rules guiding the services of Gramin
Dak Sevaks who are also referred to as extra-departmental agents in D
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 E
(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 F
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 G
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 H
1142 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 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 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,
B
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
C 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
D 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
E 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
F 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.
G 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.
We, however, give below the key factual features of the individual appeals
in a tabular form :-
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1143
[ANIRUDDHA BOSE, J.]
S. No. Case Number Service Details of Original Applicants A
1. Civil Appeal No. 08.08.1970–Joined as GDS. (Worked for 28 years)
8979 of 20 14 31.12.1998 – Appointed to Group D post.
30.06.2008— Superannuated
Qualifying Service Period: 9 years, 6 months, 1
day.
B
2. SLP (C) No. 979 of 11.08.1967 – Joined as GDS. (Worked for 29 years)
2015 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. 14.08.1972 – Joined as GDS. (Worked for 27 years)
9886 of 20 14 06.09.1999 – Promoted as Postman (Group ‘C’ C
post).
28.02.2009 – Superannuated.
Qualifying Service Period: 9 years, 5 months, 11
days.
4. Civil Appeal No. 14.09.1971 – Joined as GDS. (Worked for 28 years) D
8674 of 20 15 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- 29.08.1981 – Joined as EDDA; (Worked for 16
20558 of 2 015 in years) E
SLP (C) ....... of 24.12.1997 – Appointed to Group D post.
2015 31.05.2007 – Superannuated.
Qualifying Service Period: 9 years, 5 months, 23
days.
6. Civil Appeal No. 25.02.1972 – Joined as GDS. (Worked for 31 years)
2825 of 20 16 08.03.2003 – Selected as Postman. F
31.10.2012 – Superannuated.
Qualifying Service Period: 9 years, 7 months, 23
days.
7. Civil Appeal No. 21.02.1979—Joined as GDS. (Worked for 29 years)
5008 of 20 16 13.06.2001—Joined as Postman.
31.10.2010—Superannuated.
Qualifying Service Period: 9 years, 4 months, 18
G
days.
8. SLP (C) No. 16767 01.02.1963—Joined as GDS. (Worked for 29 years)
of 2016 30.06.1992—Joined as Mail Peon.
31.01.2002—Superannuated.
Qualifying Service Period: 9 years, 7 months.
H
1144 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 9. Civil Appeal No. 09.06.1967—Joined as EDMC. (Worked for 34 years)
8379 of 2016 12.09.1997—Assumed charge as Postman.
31.03.2007—Superannuated.
Qualifying Service Period: 9 years, 6 months, 20 days.
10. Civil Appeal Nos. 10.01.1963—Joined as Extra Departmental Runner.
B 1580-1581 of 2017 (Worked for 29 years)
27.02.1992—Joined Group D post.
31.12.2000—Superannuated.
Qualifying service period: 8 years, 10 months, 3 days.
11. Civil Appeal Nos. 22.06.1962—Joined as EDA. (Worked for 31 years)
109-110 of 2017 15.11.1993—Joined Group D post.
C 31.03.1997—Superannuated.
Qualifying Service Period: 5 years, 4 months, 15 days.
12. Civil Appeal No. Worked for 25 years as EDDA
10355 of 2016 09.11.2001—Selected and appointed as Postman.
30.06.2011—Superannuated.
Qualifying Service Period: 9 years, 7 months, 21 days.
D
13. Civil Appeal No. July 1972—Joined as EDMC. (Worked for 27 years)
10801 of 2016 15.09.1999—Joined Group D post.
31.05.2009—Superannuated.
Qualifying Service Period: 9 years, 8 months, 16 days.
14. 14(i) Civil Appeal 14.07.1972—Joined as GDS. (Worked for 30 years)
Nos. 9518-20 of 25.11.2002—Joined Group D post.
E 2017 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.
F 14(iii) 01.11.1971—Became EDM-I. (Worked for 28 years)
03.11.1999—Joined in Group D post.
31.07.2009—Superannuated.
Qualifying Service Period: 9 years, 8 months, 29 days.
15. SLP (C) No. 32881 25.01.1971—Joined as EDMP. (Worked for 28 years)
of 2018 27.11.1999—Joined Group D post.
G
31.08.2009—Superannuated.
Qualifying Service Period: 9 years, 8 months, 19 days.
16. SLP (C) No. 6544 of 21.07.1972—Joined as EDDA. (Worked for 31 years)
2019 06.08.2003—Joined Group D post.
30.06.2011—superannuated.
Qualifying Service Period: 7 years, 10 months, 9 days.
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1145
[ANIRUDDHA BOSE, J.]
8. Learned counsel for the appellants has assailed the decision A
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 3-5 hours). An
incumbent engaged as Gramin Dak Sevak (GDS) is also entitled to pursue
B
any other vocation simultaneously. It has also 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 C
v. P.K. Rajamma[(1977) 3 SCC 94], it was laid down that Extra-
Departmental 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
Extra-Departmental Agents. In the case of Chet Ram vs. Jit Singh D
[(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 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 E
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 F
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) G
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
H
1146 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 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 :-
B
“(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)
C 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,
D 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
E
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 24th November, 2015. The scope of the dispute of
that appeal would appear from the following passage of the judgment:-
F “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 directed
G 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.”
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1147
[ANIRUDDHA BOSE, J.]
12. Such direction was issued by the Tribunal, inter-alia, on the A
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
B
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 appellant-Union of India has filed an additional affidavit on
26.10.2015 stating inter alia that the Extra Departmental Agents C
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 D
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 E
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.
F
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 G
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
H
1148 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 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.”
B 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 ex-gratia gratuity or any other payment as may
be decided by the Government from time to time.”
C This particular 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 17th November, 2016. We are apprised in
course of hearing of these appeals by the learned counsel for the Central
D 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
E 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
F 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 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
G while he was serving as GDS 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
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1149
[ANIRUDDHA BOSE, J.]
the factual context of the case of D.S. Nakara (supra) is different. The A
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
B
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 C
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
D
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 E
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
F
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 G
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
H
1150 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 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
B
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
C 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
D 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 &
E 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
F of Karnataka High Court delivered on 17th June, 2011 in the case of
W.P. No. 81699/2011Union 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
G 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. (supra).
17. It is also the respondents’ case that under Clause 49(3) of the
H 1972 Rules, if they had served more than 9 years and 3 months in regular
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1151
[ANIRUDDHA BOSE, J.]
employment, they would be entitled to have additional period computed A
for the purpose of qualifying service. Said Rule 49(3) specifies: -
“In calculating the length of qualifying service, fraction of a year
equal to three months and above shall be treated as a completed
one half-year and reckoned as qualifying service.”
Arguments were advanced that if within a period of one year an B
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 C
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:- D
“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 E
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 F
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 power to relax is exercised in each case of marginal
shortfall in qualifying service, that would constitute an endless exercise. G
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 H
1152 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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
G 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).
H
UNION OF INDIA & ORS. v. GANDIBA BEHERA 1153
[ANIRUDDHA BOSE, J.]
(ii) In respect of the other respondents,who have not been issued A
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. B
23. There shall be no order as to costs.
Nidhi Jain Appeals allowed.
C
D
E
F
G
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