UNION OF INDIA & ORS. versus GANDIBA BEHERA on 8 November 2019

[2019] 13 S.C.R. 1136

SUPREME COURT REPORTS

[2019] 13 S.C.R.

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UNION OF INDIA & ORS.

v.

GANDIBA BEHERA

(Civil Appeal No. 8497 of 2019)

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NOVEMBER 08, 2019

[RANJAN GOGOI, CJI, DEEPAK GUPTA ANDANIRUDDHA BOSE, JJ.]

Service law:

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CCentral Civil Services (Pension) Rules, 1972: Pension –Qualifying years of service – Calculation of – Services rendered byemployees 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 entitlementto pension – Held: Services rendered by the respondents as GDS orDother Extra–Departmental Agents cannot be factored in forcomputing their qualifying services in regular posts under the postaldepartment for the grant of pension – On facts, respondents notfound eligible for pension as their services fell short of the qualifyingperiod of 10 years – Employees deserve sympathetic considerationEfor grant of pension if undue hardship is caused to them – Authoritiesto consider their cases for exercising the power to relax themandatory requirement of qualifying service under the 1972 Rules– In case pension order has been issued to the respondent, the sameshall not be disturbed – As regards, other respondents, who havenot been issued any order for pension, the department to considerFtheir 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–Gcharged employees. The said category of employees, i.e. work–charged employees are engaged against specific work and theirpay and allowances are chargeable to such work. But the scopeof respondents’ work as GDS– Gramin Dak Sevaks was part–time in nature. They had the liberty to engage themselves inother vocations, though the work they involved in carried anH

element of permanency. The fact that they were engaged as GDSswhich constituted civil posts cannot by implication treat theirservice having whole–time characteristic to be an extension oftheir service rendered in the capacity of GDSs. The subsequentservice was guided by different service Rules having differentemployment characteristics. The selection of an employee inregular post cannot also be pre–dated because of delay on thepart of the authorities in holding the selection process. Therespective High Courts, whose judgments are under appeal beforethis Court, have uniformly held in favour of the GDSs whosubsequently were selected as regular employees of the postaldepartment. The original applicants were not found eligible forpension as their services fell short of the qualifying period. Theview of the High Court cannot be accepted on this count injudgments which form subject of appeal. Service tenure of anemployee in a particular post cannot be artificially extended inthat manner in the absence of any specific legal provision.[Para 15][1149-G-H; 1150-A-C]

1.2 There is no specific Rule or even administrative circularspecifying computation of service period rendered as GDS to fillup the gap in the qualifying service requirement of therespondents. The only circular on which the respondents laidstress on was the 1991 circular which was considered in the caseof Union of India & Ors. v. Registrar & Anr. As the post of GDSdid not constitute full–time employment, the benefits of the saidcircular cannot aid the respondents. [Para 16][1150-D-E]

1.3 It was respondents’ case that under Clause 49(3) of the1972 Rules, if they had served more than 9 years and 3 monthsin regular employment, they would be entitled to have additionalperiod computed for the purpose of qualifying service. It wassubmitted that if within a period of one year an employee hadserved more than six months, then the total employment termought to be computed as twice the period of one half year in twotranches and one year ought to be added to the service. However,on a plain reading of the said Rule, such an interpretation cannotbe given. The Rule contemplates one time benefit in case ofservice of more than 3 months in fraction of a year. [Para 17][1151-B-C]

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A1.4 Rule 88 of the 1972 Rules empowers the concernedministry or the department to relax the operation of any Rule toprevent undue hardship in a particular case. Exercise of powerunder the said Rules however comes within the decision makingdomain of the executive. The appellants’ case has been that ifsuch power to relax is exercised in each case of marginal shortfallBin qualifying service, that would constitute an endless exercise.[Para 18][1151-D, G]

1.5 Having regard to the provisions of the Rules relatingto qualifying service requirement, the services rendered by therespondents as GDS or other Extra–Departmental Agents cannotCbe factored in for computing their qualifying services in regularposts under the postal department on the question of grant ofpension. But it is found that many of the respondents are missingpension on account of marginal shortfall in their regular servicetenure. This should deserve sympathetic consideration for grant Dof pension. But this Court cannot trace its power or jurisdictionto any legal principle which could permit to fill up the shortfall byimporting into their service tenure, the period of work theyrendered as GDS or its variants. In view thereof, the judgmentsunder appeal cannot be sustained. There is no provision underthe law on the basis of which any period of the service renderedEby the respondents in the capacity of GDS could be added totheir regular tenure in the postal department for the purpose offulfilling the period of qualifying service on the question of grantof pension. [Para 19, 20][1151-G-H; 1152-A-D]

1.6 The authorities ought to consider their cases forFexercising the power to relax the mandatory requirement ofqualifying service under the 1972 Rules if they find the conditionscontained in Rule 88 stand fulfilled in any of these cases. Thestand of the appellants cannot be accepted just because thatexercise would be prolonged, recourse to Rule 88 ought not toGbe taken. The said Rules is not number specific, and if unduehardship is caused to a large number of employees, all of theircases ought to be considered. In the event the CentralGovernment or the postal department has already issued anyorder for pension to any of the respondents, then such pensionshould not be disturbed, following the course which was directedH

to be adopted by this Court in the case of Union of India & Ors.v. Registrar & Anr. In respect of the other respondents, whohave not been issued any order for pension, the concernedministry may consider as to whether the minimum qualifyingservice Rule can be relaxed in their cases in terms of Rule 88 ofthe 1972 Rules. [Para 21][1152-E-F; 1153-A]

Union of India & Ors. vs. The Registrar & Anr. CivilAppeal Nos. 13675–13676 of 2015 – relied on.

D.S. Nakara & Ors. vs. Union of India (1983) 1 SCC305 : [1983] 2 SCR 165 – distinguished.

Superintendent of Post Offices and Others v. P.K.Rajamma (1977) 3 SCC 94 : [1977] 3 SCR 678; ChetRam vs. Jit Singh (2008) 14 SCC 427 : [2008] 14 SCR1124; Habib Khan v. State of Uttarakhand and Others(2018) 1 SLR 724 (SC) – held inapplicable.

Punjab State Electricity Board and Another v. NakaraSingh and Another (2010) 4 SCC 317 : [2010] 3 SCR27; Union of India and Others vs. Dattappa W.P. No.81699/2011 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8497of 2019.

From the Judgment and Order dated 03.01.2014 of the High Courtof Orissa at Cuttack in Writ Petition (C) No. 28905 of 2011.

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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, A

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ASLP (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, ShekharDwivedi, T. A. Khan, Gurmeet Singh Makker, Arvind Kumar Sharma,BMukesh K. Giri, Jitendra Mohapatra, Kedar Nath Tripathy, Ms. ReenaRao, Sandiv Kalia, Srilok Nath Rath, Abhishek Aanand Rai, Dr. SushilBalwada, Sanjay Kumar Visen, Mrs. K. Sarada Devi, R. Vijay NandanRaddy, Amarjeet Singh Dheman, S. R. Setia, Joydeep Mukerjee,Ms. Seema Kashyap, P. R. Kovilan, Mrs. Geetha Kovilan, Ms. LakshmiK.G., Vijay Prakash, Abid Ali Beeran P, S.K. Sinha, James P. Thomas,CB.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, MichelleDGomes, 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) DiaryENo.13464/2018, S.L.P.(C) No.16615/2018, S.L.P.(C)No.3392/2019 andS.L.P.(C) Diary No.18007/2019. Hence these maters are directed to bede-tagged from this batch of appeals. Let these matters be placed beforethe appropriate Bench after completion of service.

2. Delay condoned and leave is granted in SLP (C) CC Nos.F20557-20558 of 2015 and SLP (C) No.32881 of 2018.Leave is also granted in rest of the petitions for Special Leave toAppeal.

3. All these appeals have reached this Court from decisions ofdifferent Benches of the Central Administrative Tribunal and thereafterGjudgments of the High Courts on a common question of law. The disputein these appeals is as to whether services rendered by the employees inthe postal department in the capacity of Gramin Dak Sevaks (GDS)ought to be computed or not for the purpose of calculation of thequalifying service of their pension after they got selected in regular postsin the said department. The respective High Courts, whose judgmentsH

are under appeal before us, have uniformly held in favour of the GDSswho subsequently were selected as regular employees of the postaldepartment. The original applicants were not found eligible for pensionas their services fell short of the qualifying period. The minimum serviceperiod in regular employment in the said Department for being entitledto pension is contained in Central Civil Services (Pension) Rules, 1972and it is 10 years. We shall refer to these Rules henceforth as the 1972Rules. In all these appeals, service tenure of the respondents in regularposts 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 withthe provisions of these rules before completing qualifying serviceof ten years, the amount of service gratuity shall be calculated atthe rate of half month’s emoluments for every completed sixmonthly period of qualifying service.”

4. There have been separate Rules guiding the services of GraminDak Sevaks who are also referred to as extra-departmental agents inthe postal department. The present Rules which has been cited beforeus is titled Gramin Dak Sevaks (Conduct and Engagement) Rules,2011 (the 2011 Rules). There was P&T Extra DepartmentalAgents(Conduct & Service) Rules, 1964 which prevailed earliercovering the same field before replaced by Gramin Dak Sevaks(Conduct and Employment) Rules, 2001. These Rules ultimatelygave way to the 2011 Rules. The GDSs have been identified in differentabbreviated designations over the period of time, possibly depending onthe nature of work they were engaged in. These are EDMC, ED-Packer, Departmental runner, EDDA and GDS. The last of thesedesignations being the short form of Gramin Dak Sevaks is what theyare known as at present.

5. The lead case which has been argued before us arises from anapplication 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 inBalasore division of the State of Orissa on 1[st] April, 1968. He continuedto work in that capacity until 25[th] May, 1999, from which date, he wasengaged in a Group ‘D’ post in regular employment through the properselection process. This status as a Group “D” employee was conferredon him retrospectively, by way of a memorandum issued by the authorities AB

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Aon 30[th] December 1999. He attained the age of superannuation on30[th] June, 2008. His claim for pension was, however, denied on the groundof not having completed 10 years of minimum qualifying service in theGroup ‘D’ post. The Tribunal, by an order passed on 6[th] July, 2011, upheldthe applicant’s plea for having part of his service rendered in the capacityof GDS computed for meeting the requirement of qualifying service,Brelying on an earlier decision of the Tribunal delivered in O.A. No. 310of 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 thisTribunal has meanwhile been reviewed or reversed by any higherCcourt. In view of the above, I find no justifiable reason to deviatefrom the view already taken by this Tribunal in the case ofGouranga Ch. Sahoo (supra). Hence the respondents are herebydirected to bring such of the shortfall period of service from theED employment of the applicant to count for the purpose ofDminimum period of ten years qualifying service and accordinglysanction and pay the pension and pensionary benefits to theapplicant from the date of his retirement forthwith preferably withina period of 60 (sixty) days from the date of receipt copy of thisorder; failing which, the applicant shall be entitled to 6% on thearrear pension and pensionary dues from the date of his retirementEtill actual payment is made and the Respondents are free torecover the interest amount from the officer who would be foundresponsible for causing delay in payment.”

6. The Orissa High Court by a judgment delivered on 3[rd] January,2014 in the writ petition brought by the Union of India and the postalFauthorities found no reason to interfere with the Tribunal’s order. TheHigh Court directed compliance of the said order of the Tribunal, mainlyrelying on an earlier judgment of the Court delivered on 6[th] December,2011 in W.P. (C) No. 11665 of 2011.

7. In rest of the appeals, the factual disputes are similar in nature.GPoints of law involved are also near-identical. For these reasons, we donot consider it necessary to individually deal with each of these cases.We, however, give below the key factual features of the individual appealsin a tabular form :- H

8. Learned counsel for the appellants has assailed the decisionof the Orissa High Court in the case of Gandiba Behera (supra)affirming the Tribunal’s order mainly on the ground that serviceundertaken as GDS could not be equated with regular service. Serviceof a GDS carries lower working hours (between 3-5 hours). Anincumbent engaged as Gramin Dak Sevak (GDS) is also entitled to pursueany other vocation simultaneously. It has also been highlighted on behalfof the appellants that services of Gramin Dak Sevaks are regulated by adifferent set of rules and Court ought not to direct the administration orexecutive authorities in the capacity of employer to create an altogethernew service Rule for a particular set of employees.

9. In the case of Superintendent of Post Offices and Othersv. P.K. Rajamma[(1977) 3 SCC 94], it was laid down that Extra-Departmental Agents connected with the postal departments held civilposts. That finding was given while dealing with applicability of Article311 of the Constitution in relation to dismissal orders passed against theExtra-Departmental Agents. In the case of Chet Ram vs. Jit Singh[(2008) 14 SCC 427], this Court examined the question as to whethera GDS is a government servant or not. This issue came up forconsideration before this Court in a dispute concerning eligibility of aGDS to become a member of Nagar Panchayat in terms of the PunjabState Election Commission Act, 1994. The opinion of the Court was thatsuch agents were government servants holding civil posts. TheConstitution Bench judgment in the case of D.S. Nakara & Ors. vs.Union of India [(1983) 1 SCC 305] was also cited on behalf of therespondents in support of their stand that there could be no discriminationbetween two sets of pensioners.

10. A set of GDSs who stood absorbed as Group ‘D’ employeeshad approached this Court invoking the jurisdiction of the Court underArticle 32 of the Constitution of India seeking benefits akin to the oneswhich form the subject-matter of these appeals. That petition wasregistered as Writ Petition (Civil) No. 17/2009. The Rule involved in thatwrit petition was Department of Posts, (Multi-Tasking Staff)Recruitment Rules, 2010. There was specific provision in the saidRules for declaring GDSs as holders of civil posts but they were outsideregular civil service. The said writ petition was disposed of by an orderpassed on 9[th] December, 2014 giving the writ petitioners liberty toapproach the Central Administrative Tribunal, Principal Bench, New A

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ADelhi. Subsequently, three applications were instituted before the PrincipalBench of the Tribunal. These were registered as O.A. Nos. 749/2015,3540/2015 and O.A. No. 613/2015. The applications of the individualGDSs were allowed by the Tribunal. The decision in that regard wasdelivered on 17[th] 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 asregular Group ‘D’ staff, the period spent as Gramin Dak Sevakwill be counted in toto for the purpose of pensionary benefits.

(b) Pension will be granted under the provisions of CCS (Pension)CRules, 1972 to all Gramin Dak Sevaks, who retire as Gramin DakSevak without absorption as regular Group ‘D’ staff, but the periodto be counted for the purpose of pension will be 5/8[th] of the periodspent as Gramin Dak Sevak. Rule 6 will accordingly be amended.(c) The Gramin Dak Sevaks (Conduct and Engagement) Rules,D2011 are held to be valid except Rule 6, as stated above.

(d) The claim of Gramin Dak Sevaks for parity with regularemployees regarding pay and allowances and other benefitsavailable to regular employees, stands rejected.”

11. A Bench of this Court presided over by one of us (Hon’bleEJustice Ranjan Gogoi) has examined a similar question in Civil AppealNos. 13675-13676 of 2015 (Union of India & Ors. Vs. The Registrar& Anr.) decided on 24[th] November, 2015. The scope of the dispute ofthat appeal would appear from the following passage of the judgment:- F“The respondent no. 2 viz. N.S. Poonusamy worked as an ExtraDepartmental Agent in the Postal Department from the year 1968to 1993. He was regularized on 01.04.1993 and retired on31.05.2002. The second respondent had completed nine yearsand two months of service but he was not granted any pension.Therefore, he approached the learned Tribunal which directedGthat a scheme be framed to give some benefit of service renderedby such employees as Extra Departmental Agents so as to enablethem to earn the requisite period of qualifying service for pensioni.e. 10 years. Aggrieved, the Union of India moved the High Courtby way of a writ petition out of which these appeals have arisen.”

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12. Such direction was issued by the Tribunal, inter-alia, on thebasis of a circular of DoPT issued in the year 1991. The said circularprovided that service rendered by an Extra Departmental Agent to theextent of 50% of the period thereof was to be added to the period ofregular service for the purpose of entitlement to pension. During pendencyof the appeal, however, the Central Government had issued order grantingregular pension to the Respondent No.2 in that appeal.

13. Allowing the appeal of the Union of India, it was held by thisCourt in that case:- “The appellant-Union of India has filed an additional affidavit on26.10.2015 stating inter alia that the Extra Departmental Agentscovered by the DOP&T Circular, 1991, are full time casualemployees, whereas the second respondent is a part time casualemployee and under the Rules governing his service framed inthe year 1964 and amended in the years 2001 and 2011, employeeslike the respondent no. 2 are required to render between three tofive hours of service every day. At the time of their appointmentthey are required to give an undertaking to the effect that theyhave alternative source of income to support their families. Theneed for appointment of such employees, according to the Unionof India, is to reach out to the addresses in far flung villages in thecountry where establishment and maintenance of a regular postoffice is not a viable proposition. Attention is also drawn to theprovisions of the aforesaid Rules to the effect that such employeesare not entitled to pension but would be entitled to ex-gratia gratuityand such of the payments as may be decided by the Governmentfrom time to time.

Considering the fact that the DOP&T Circular, 1991, which formthe basis of the impugned direction of the learned Tribunal asaffirmed by the High Court, pertained to full time casual employeesto which category the second respondent does not belong andthe provisions of the Rules governing the conditions of service ofthe respondent as noted above, we are of the view that theimpugned directions ought not to have been passed by the learnedTribunal and approved by the High Court. The matter pertains topolicy and involved financial implications. That apart, in view ofthe facts placed before us, as noted above, we deem it proper to A

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Ainterfere with the impugned directions and allow these appealsfiled by the Union of India. We, however, make it clear that thepension granted to the second respondent will not be affected bythis order and the said respondent will continue to enjoy the benefitof pension in accordance with the provisions of law.”

B14. The respondents have also referred to clause 6 of the 2011Rules which stipulates:- “The Sevaks shall not be entitled to any pension. However, theyshall be entitled to ex-gratia gratuity or any other payment as maybe decided by the Government from time to time.”

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This particular Rule, making service of this category of employeesnon-pensionable however, has been struck down as unconstitutional bythe Principal Bench of the Central Administrative Tribunal, New Delhiby a decision delivered on 17[th] November, 2016. We are apprised incourse of hearing of these appeals by the learned counsel for the CentralDGovernment that the said decision of the Tribunal has been challengedbefore the Delhi High Court by the Union of India by way of a WritPetition, registered as W.P. (C) No. 832 of 2018. We are also informedthat no effective order has as yet been passed by the Delhi High Courtin 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 4Ethereof has also been invalidated by the Punjab & Haryana High Court.Though the fact that the service of GDS was not pensionable was oneof 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 towhy the plea of the GDS was turned down by this Court. We haveFreproduced above the relevant passages from the said judgmentcontaining the reasoning for allowing the appeal. For adjudication of thisset of appeals, thus the proceeding in which the Rule making service ofGDS non-pensionable has been struck down is not of much relevance.The controversy which we are dealing with in this judgment is whetherthe period of service rendered by a regular staff of the postal departmentGwhile he was serving as GDS would be computed for the purpose ofdetermining his qualifying service to entitle him to get pension.

15. The case of D.S. Nakara(supra) has been relied upon onbehalf of the respondents in support of their contention that there cannotbe any artificial discrimination between two groups of pensioners. ButH

the factual context of the case of D.S. Nakara (supra) is different. Thediscrimination which was challenged in that case related to two sets ofretired Armed Forces personnel who were categorised on the basis oftheir dates of retirement and one set had better terms of pension. Thedecisions in the cases of P.K. Rajamma(supra) and Chet Ram (supra)are for the proposition that the respondents held civil posts as GDS andwere government servants. But again ratio of these authorities cannotbe applied to combine the services rendered by GDSs in posts guided byan altogether different service rule with their services in regularemployment. The other authority on which reliance has been placed onbehalf 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 andOthers [2018 (1) SLR 724 (SC)]. That case arose out of a similardispute involving a work-charged employee of the State of Uttarakhandwho wanted his service in that capacity counted for computing thequalifying service in regular post on the question of grant of pension.This judgment was also delivered by a two-Judge Bench of whichHon’ble Justice Ranjan Gogoi, before His Lordship assumed the post ofChief Justice of India, was a member. The aforesaid decision followedan earlier judgment of this Court delivered in the case of Punjab StateElectricity Board and Another v. Nakara Singh and Another[(2010) 4 SCC 317]. The latter case arose out of similar claims ofwork charged employees who were engaged in the Irrigation and PowerDepartment of the State of Punjab. The relevant provision of the PunjabCivil Services Rules allowed temporary or officiating service under theState Government without interruption followed by confirmation in thesame or another post to be counted in full as qualifying service butexcluded the period of service in work charged establishment. Theaforesaid Rule was struck down by the Full-Bench of the Punjab andHaryana High Court. The decision of this Court in the case of NakaraSingh (supra)was however founded on two circulars which permittedcounting the period of service rendered by a work charged employee inthe Central Government or the State Government for the purpose ofcomputing pensionary benefits as an employee of the Punjab StateElectricity Board. The respondents in these appeals also cannot be heldto be work-charged employees. The said category of employees, i.e.work-charged employees are engaged against specific work and theirpay and allowances are chargeable to such work. But the scope ofrespondents’ work as GDS was part-time in nature. They had the liberty AB

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Ato engage themselves in other vocations, though the work they involvedin carried an element of permanency. The fact that they were engagedas GDSs which constituted civil posts cannot by implication treat theirservice having whole-time characteristic to be an extension of theirservice rendered in the capacity of GDSs. The subsequent service wasguided by different service Rules having different employmentBcharacteristics. The selection of an employee in regular post cannot alsobe pre-dated because of delay on the part of the authorities in holdingthe selection process. We do not agree with the view of the High Courton this count in judgments which form subject of appeal in Civil AppealNo. 5008 of 2016, SLP(C)No.16767 of 2016, Civil Appeal No. 8379 ofC2016 and Civil Appeal No. 10801 of 2016. Service tenure of an employeein a particular post cannot be artificially extended in that manner in theabsence 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 computationDof service in that capacity was specifically rejected. There is no specificRule or even administrative circular specifying computation of serviceperiod rendered as GDS to fill up the gap in the qualifying servicerequirement of the respondents in this set of appeals. The only circularon which the respondents laid stress on was the 1991 circular whichwas considered in the case of Union of India & Ors. v. Registrar &EAnr. (supra). As the post of GDS did not constitute full-time employment,the benefits of the said circular cannot aid the respondents. Thus, therebeing a clear cut finding on similarly placed employees, we do not thinkwe can apply the ratio of the judgment delivered in the case of HabibKhan (supra) in support of the respondents’ plea. An unreported judgmentFof Karnataka High Court delivered on 17[th] June, 2011 in the case ofW.P. No. 81699/2011Union of India and Others Vs. Dattappa hasalso been cited on behalf of the respondents. This judgment went infavour of counting the period of service as extra-departmental Agentfor qualifying service in relation to pension and the Division Bench of the Karnataka High Court proceeded on the basis that for all intents andGpurpose, the employment was continuous in nature and it was not as if itwas from one service to another. But, this view has not been acceptedby 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 theH1972 Rules, if they had served more than 9 years and 3 months in regular employment, they would be entitled to have additional period computedfor the purpose of qualifying service. Said Rule 49(3) specifies: - “In calculating the length of qualifying service, fraction of a yearequal to three months and above shall be treated as a completedone half-year and reckoned as qualifying service.”

Arguments were advanced that if within a period of one year anemployee had served more than six months, then the total employmentterm ought to be computed as twice the period of one half year in twotranches and one year ought to be added to the service. But on a plainreading of the said Rule, in our view such an interpretation cannot begiven. The Rule contemplates one time benefit in case of service ofmore than 3 months in fraction of a year.

18. Rule 88 of the 1972 Rules empowers the concerned ministryor the department to relax the operation of any Rule to prevent unduehardship 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 satisfiedthat the operation of these rules, causes undue hardship in anyparticular case, that Ministry or Department, as the case may be,may, by order for reasons to be recorded in writing, dispense withor relax the requirements of that rule to such extent and subject tosuch exceptions and conditions as it may consider necessary fordealing with the case in a just and equitable manner:

Provided that no such order shall be made except with theconcurrence of the Department of Pension & Pensioner’sWelfare.”

Exercise of power under the said Rules however comes withinthe decision making domain of the executive. The appellants’ case hasbeen that if such power to relax is exercised in each case of marginalshortfall in qualifying service, that would constitute an endless exercise.

19. Having regard to the provisions of the aforesaid Rules relatingto qualifying service requirement, in our opinion the services renderedby the respondents as GDS or other Extra-Departmental Agents cannotbe factored in for computing their qualifying services in regular postsunder the postal department on the question of grant of pension. But we A

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Aalso find many of the respondents are missing pension on account ofmarginal shortfall in their regular service tenure. This should deservesympathetic consideration for grant of pension. But we cannot trace ourpower or jurisdiction to any legal principle which could permit us to fillup the shortfall by importing into their service tenure, the period of workthey rendered as GDS or its variants. At the same time, we also find thatBin the case of Union of India & Ors. v. The Registrar & Anr. (supra),though the incumbent therein (being respondent no.2) had completednine years and two months of service, the Union of India had passedorders granting him regular pension. This Court in the order passed on24[th] November 2015 had protected his pension though the appeal ofCUnion of India was allowed.

20. For the reasons we have already discussed, we are of theopinion that the judgments under appeal cannot be sustained. There isno provision under the law on the basis of which any period of the servicerendered by the respondents in the capacity of GDS could be added toDtheir regular tenure in the postal department for the purpose of fulfillingthe period of qualifying service on the question of grant of pension.

21. We are also of the opinion that the authorities ought to considertheir cases for exercising the power to relax the mandatory requirementof qualifying service under the 1972 Rules if they find the conditionsEcontained in Rule 88 stand fulfilled in any of these cases. We do notaccept the stand of the appellants that just because that exercise wouldbe prolonged, recourse to Rule 88 ought not to be taken. The said Rulesis not number specific, and if undue hardship is caused to a large numberof employees, all of their cases ought to be considered. If in the cases ofany of the respondents’ pension order has already been issued, the sameFshall not be disturbed, as has been directed in the case of Union ofIndia & Ors. v Registrar & Anr. (supra). We, accordingly allow theseappeals and set aside the judgments under appeal, subject to the followingconditions:-

(i) In the event the Central Government or the postal departmentGhas 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 bythis Court in the case of Union of India & Ors. v. Registrar &Anr.(supra).

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UNION OF INDIA & ORS. v. GANDIBA BEHERA[ANIRUDDHA BOSE, J.]

(ii) In respect of the other respondents,who have not been issuedany order for pension, the concerned ministry may consider as towhether the minimum qualifying service Rule can be relaxed intheir cases in terms of Rule 88 of the 1972 Rules.

22. Interim orders passed in these appeals, if any, shall standdissolved. All connected applications shall stand disposed of.

23. There shall be no order as to costs.

Nidhi Jain

Appeals allowed.

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B

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