ups_01116 — Services rendered in Gramin Dak services do not reckon for working out qualifying service for pension

Services rendered in Gramin Dak services do not reckon for working out qualifying service for pension — This chunk is about a dispute regarding whether services rendered by employees in the Postal Department as Gramin Dak Sevaks (GDS) should be computed for pension qualification after they were selecte... — Facts: 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, 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 of 10 years per the Pension Rules, 1972 and in all these appeals, the service tenure falls marginally short. The Tribunal, by an order passed on 6-7-2011, 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 (Gouranga Ch. Sahoo v. Union of India). The Orissa High Court by a judgment delivered on 3-1-2014 in the writ petition brought by the Union of India and the postal authorities found no reason to interfere with the Tribunal's order. The High Court directed compliance of the said order of the Tribunal, mainly relying on an earlier judgment of the Court delivered on 6-12-2011 in Union of India v. Gouranga Ch. Sahoo. The decision of the Orissa High Court in Gandiba Behera affirming the Tribunal's order mainly was attacked on the ground that service undertaken as GDS could not be equated with regular service. In Superintendent of Post Offices v. P.K. Rajamma, it was laid down that Extra-Departmental Agents connected with the Postal Departments held civil posts with regard to applicability of Article 311 of the Constitution. In Chet Ram v. Jit Singh, the Apex Court opined that such agents were Government servants holding civil posts. The Constitution Bench judgment in D.S. Nakara v. Union of India as also cited on behalf of the Respondents in support of their stand that there could be no discrimination between two sets of pensioners. A set of GDSs who stood absorbed as Group 'D' employees had approached the Apex 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. The said writ petition was disposed of by an order passed on 9-12-2014 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. The applications of the individual GDSs were allowed by the Tribunal. The decision in that regard was delivered on 17-11-2016 (Vinod Kumar Saxena v. Union of India) and the Tribunal directed: "20. …

(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 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." The Apex Court has examined a similar question in Union of India v. Registrar decided on 24-11-2015. The scope of the dispute of that appeal would appear from the following passage of the judgment: "2. Respondent 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 1-4-1993 and retired on 31-5-2002. The second Respondent had completed nine years and two months of service but he was not granted any pension. Therefore, he approached the Learned Tribunal which directed that a scheme be framed to give some benefit of service rendered by such employees as Extra-Departmental Agents so as to enable them to earn the requisite period of qualifying service for pension i.e. 10 years. Aggrieved, the Union of India moved the High Court [ Union of India v. Registrar, WP No. 23638 of 2003, Order, dated 18-7-2012 (Mad) ] by way of a writ petition out of which these appeals have arisen." Such direction was issued by the Tribunal, inter alia, on the basis of a circular of DoP&T 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 Respondent 2 in that appeal. Allowing the appeal of the Union of India, it was held by this Court in that case : (Registrar case) “6. The Appellant Union of India has filed an additional affidavit on 26-10-2015 stating inter alia that the Extra-Departmental Agents covered by the DoP&T Circular, 1991, are full-time casual employees, whereas the second Respondent is a part time casual employee and under the Rules governing his service framed in the year 1964 and amended in the years 2001 and 2011, employees like Respondent 2 are required to render between three to five hours of service every day. At the time of their appointment, they are required to give an undertaking to the effect that they have alternative source of income to support their families. The need for appointment of such employees, according to the Union of India, is to reach out to the addresses in far-flung villages in the country where establishment and maintenance of a regular post office is not a viable proposition. Attention is also drawn to the provisions of the aforesaid Rules to the effect that such employees are not entitled to pension but would be entitled to ex gratia gratuity and such of the payments as may be decided by the Government from time to time. 7. 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 involves 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.” In Union of India v. Registrar [ (2021) 14 SCC 803 ], 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 Union of India v. Registrar [ (2021) 14 SCC 803 ]. As the post of GDS did not constitute full-time employment, the benefits of the said circular cannot aid the Respondents. 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 one time benefit in case of service of more than three months in fraction of a year. Rule 88 of the 1972 Rules empowers the Ministry or the Department concerned 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 and 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 power to relax is exercised in each case of marginal shortfall in qualifying service, that would constitute an endless exercise. Having regard to the provisions of the aforesaid Rules relating to qualifying service requirement, the Apex Court opined that the services rendered by the Respondents as GDS or other Extra-Departmental Agents cannot be factored in for computing their qualifying services in regular posts under the Postal Department on the question of grant of pension. But we also find many of the Respondents are missing pension on account of marginal shortfall in their regular service tenure. This should deserve sympathetic consideration for grant of pension. In Union of India v. Registrar, though the incumbent therein (being Respondent 2) had completed nine years and two months of service, the Union of India had passed orders granting him regular pension. This Court in the Order, passed on 24-11-2015 had protected his pension though the appeal of the Union of India was allowed. For the reasons already discussed, 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. The authorities ought to consider their cases for exercising the power to relax the mandatory requirement of qualifying service under the 1972 Rules if they find the conditions contained in Rule 88 stand fulfilled in any of these cases. We do not accept the stand of the Appellants that just because that exercise would be prolonged, recourse to Rule 88 ought not to be taken. The said Rules is not number specific, and if undue hardship is caused to a large number of employees, all of their cases ought to be considered. If in the cases of any of the Respondents' pension order has already been issued, the same shall not be disturbed, as has been directed in Union of India v. Registrar [ (2021) 14 SCC 803 ].