Union of India & Ors. vs Gandiba Behera

HELD: 1.1 The respondents 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– 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 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 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. 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 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. [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 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 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 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][1151B-C]

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 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 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 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 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 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 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 to be adopted by this Court in the case of Union of India & Ors. 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]

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. 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 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.