REMEMBER-
*IMPORTANT JUDGEMENT FROM HON'BLE CAT PRINCIPAL BENCH DELHI-REGARDING GDS.*
To summarise, we dispose of the O.As. with the following directions to the respondents:
(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 purpse 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.
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http://cgatnew.gov.in/catweb/Delhi/order_files/oral/2016/November/110720006712015_1.pdf#page=1 CENTRAL ADMINISTRATIVE TRIBUNALPRINCIPAL BENCH
O.A. No. 749/2015
withO.A. No 3540/2015
andO.A. No.613/2015
New Delhi, this the 17th day of November, 2016.
HON’BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON’BLE MR. P.K. BASU, MEMBER (A)
O.A. No.749/2015
1. Shri Vinod Kumar Saxena S/o Late Prem Prakash Saxena aged about 59 years,GDS Packer appointed EDSPM Presently Posted as Postal Assistant at: Debai, Bulandshahar, R/o Nai Basti Lal Darvaja, Shikarpur, Bulandshahar, U.P. DOA: 10.01.1974
(and others through various OAs)
Versus
1. Union of India
305 OA 749/2015 with 2 connected OAs
Through its Secretary cum Director General, Communication Department Govt. of India, Dak Bhawan, New Delhi-110001.
...........
(And others viz Chief PMsG, PMsG, SSPs , SPs etc. )
*O R D E R (ORAL)*
Mr. P.K. Basu, Member (A)
In O.A. Nos. 749/2015 and 3540/2015, the applicants have
made the same prayer. In O.A. No.613/2015, the applicants have made a prayer, which is similar to the prayer made in the other two OAs. In view of this, all the three OAs were heard together and are being disposed of by a common order.
2. The applicants in all the three OAs were appointed as Gramin
Dak Sevaks and were later on absorbed as Group ‘D’ employees by the Department of Posts. Their prayer is that they be treated as regular civilian servants, paid salary with DA, HRA etc. as per the scales paid to regular employees. They also pray that they should be paid pension as per the provisions of CCS (Pension) Rules, 1972.
Their further prayer is that the respondents should take into
account their past service as Gramin Dak Sevaks and not treat them as fresh appointees on regular service. Briefly, what they are seeking is their parity with regular Postal Department’s Group ‘D’personnel and specifically, pay and allowances at par with them including benefits of pay revision and, at the same time, bring them under the ambit of CCS (Pension) Rules counting their period of service as Gramin Dak Sevaks for the purpose of pension.
3. The relevant judgments in this regard are:
(i) The order of the Hon’ble Supreme Court in Writ Petition
No.17/2009 (Vinod Kumar Saxena & others vs. Union of India &others) dated 09.02.2014. The issue was whether Gramin Dak Sevaks are holders of civil posts or not and the Hon’ble Supreme Court has held as follows:
“In view of the aforesaid analysis, the writ petitioners are treated as civil post holders …..”
ii) The order dated 17.06.2011 by the Hon’ble High Court of
Karnataka in W.P. No.81669/2011 between Union of India &others vs. Dattappa S/o Ningappa, Gangapur. This writ was filed by the Govt. seeking quashing of the order dated 23.03.2011 in
O.A. No.245/2010 passed by the Bangalore Bench of the Tribunal,by which the applicant in that O.A., who was also a Gramin Dak Sevak and later selected as Group ‘D’ employee, was held to be entitled to the benefits under CCS (Pension) Rules,1972. The contention of the Govt. in that case was that the applicant wasentitled to benefits of CCS (Pension) Rules only for the period heserved as Group ‘D’ and not for the period he served as Gramin Dak Sevak.
The Hon’ble High Court, after examining the provisions of CCS (Pension) Rules, 1972, noted that the Madras Bench of theTribunal had accepted the same while disposing of the O.A.No.1246/2001 vide orderdated18.04.2002 and dismissed the writ petition. The aforesaid order was assailed by the Postal Authority before the Hon’ble Madras High Court in W.P. No.45465/2002. The order of the Madras Bench of the Tribunal was affirmed by the Hon’ble Madras High Court.
Postal authorities approached the Hon’ble Supreme Court by preferring petition for Special Leave to Appeal (Civil) No.138/2009, which came to be dismissed. The Hon’ble High Court held that the applicants were promoted from Gramin Dak Sevak to the Group ‘D’ cadre and the employment was continuous in nature and found no justification to bifurcate the
services rendered by the respondent therein in two separate
components and held that he would definitely be found to renderthe qualifying service and the past service as Gramin Dak Sevak should be counted.
In fact, the Hon’ble High Court deprecated the stand of the Postal Department in entering into a litigation, despite
the fact that the same issue had been decided by the Madras Bench of this Tribunal in O.A. 1246/2001, which was upheld by the Hon’ble High Court and SLP dismissed by the Hon’ble Supreme Court, and imposed a cost of Rupees one lakh on the Postal Department.
4. The respondents in their reply have cited the judgment of the
Hon’ble Supreme Court of India in the matter of Superintendent of Post Offices vs. P.K. Rajamma, (1977) 3 SCC 678. In this case, theHon’ble Supreme Court has held as follows:
“(a) An "extra departmental agent" held a "civil post" and his dismissal or removal would be invalid, if there was non- compliance with Art. 311 (2) of the Constitution; and
(b) An extra departmental agent is not a casual worker, but he holds a post under the administrative control of the State. It is apparent from the 1964 Rules that the employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil service, there is no doubt it is a post under the State; and
(c) The 1964 rules make it clear that these extra departmental agents work under the direct control and supervision of the authority who obviously have the right to control the manner in which they must carry out their duties. There can be no doubt, therefore, that the relationship between the Postal Authorities and the extra- departmental agents are of master and servant.”
5. The learned counsels for the respondents stated that the
Govt. had constituted Justice Talwar Committee, which had
concluded that Gramin Dak Sevaks are entitled to all those benefits which accrue to a regular civil servant. In para 4.6, the following has been recommended by the Committee:
“4.6 As a result of the above discussion, the extra-departmental agents have to be included within the overall class of civil servants, being holders of civil posts. They can be grouped as ‘additional’ to the departmental employees but they cannot be classified as a class apart from the civil servants. At any rate they cannot be classified with the sole object of not granting them benefits which accrue to a departmental employee.”
6. Originally, extra departmental agents (the new nomenclature
being Gramin Dak Sevaks) were governed by Post & Telegraph
Extra Departmental Agents (Conduct & Srevice) Rules, 1964
governing service conditions and disciplinary proceedings. These were repealed by substantive rules of 2001 and are currently covered under Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011. These rules, however, are non-statutory as they are not notified under Article 309 of the Constitution of India.
7. The Rules of 2011 provide the following terms and conditions
of engagement under Rule 3-A:
“3-A. Terms and Conditions of Engagement
(i) A Sevak shall not be required to perform duty beyond a maximum period of 5 hours in a day
ii) A Sevak shall not be retained beyond 65 years of age;
(iii) A Sevak shall have to give an undertaking that he has other sources of income besides the allowances paid or to be paid by the Government for adequate means of livelihood for himself and his family;
(iv) A Sevak can be transferred from one post/unit to another post/unit in public interest;
(v) A Sevak shall be outside the Civil Services of the Union;
(vi) A Sevak shall not claim to be at par with the Central Government employees;
(vii) Residence in post village/delivery jurisdiction of the Post Office within one month after selection but before engagement shall be mandatory for a Sevak;
Failure to reside in place of duty for GDS BPM and within delivery jurisdiction of the Post Office for other categories of Gramin Dak Sevaks after engagement shall be treated as violative of conditions of engagement and liable for disciplinary action under Rule 10 of the Conduct Rules, requiring removal/dismissal;
(viii) Post Office shall be located in the accommodation to be provided by Gramin Dal Sevak Branch Postmaster suitable for use as Post Office premises;
(ix) Combination of duties of a Sevak shall be permissible.”
Rule 6 regarding pension provides as follows:
“6. Pension
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.”
Rule 12 regarding put off duty provides as follows:
Rule 12. Put off duty
(1) The Recruiting Authority or any authority to which the Recruiting Authority is subordinate or any other authority empowered in that behalf by the Government, by general or special order, may put a Sevak off duty:
(a) Where a disciplinary proceedings against him is contemplated or is pending; or
(b) Where a case against him in respect of any criminal offence is under investigation, enquiry or trail:
Provided that in cases involving fraud or embezzlement, the Sevak holding any post specified in the Schedule to these rules may be put off duty by the Inspector of Post Offices or the Assistant Superintendent of Post Offices of the Sub-Division, as the case may be, under immediate intimation to the Recruiting Authority.
(2) An order made by the Inspector of Post Offices or the Assistant Superintendent of Post Offices as the case may be, of the Sub- Divisiion under sub-rule (1) shall cease to be effective on the expiry of fifteen days from the date of such order unless earlier confirmed or cancelled by the Recruiting Authority or the authority to which the Recruiting Authority is subordinate.
(3) A Sevak shall be entitled per month for the period of put off duty to an amount of compensation as ex gratia payment equal to 25% of his/her Time Related Continuity Allowance together with admissible Dearness Allowance :
Provided that where the period of put off duty exceeds 90 days, the Recruiting Authority or the authority to which the Recruiting Authority or any other authority empowered in this behalf, as the case may be, who made the order of put off duty shall be competent to vary the amount of compensation for any period subsequent to the period of first 90 days as follows :-
(i) The amount of compensation as ex gratia payment may be increased by a suitable amount, not exceeding 50% of such compensation admissible during the period of first 90 days, if in the opinion of the said authority the period of put off duty has been prolonged, for reasons to be recorded in writing, not directly attributable to the Sevak.
(ii) The amount of compensation as ex gratia payment may be reduced by a suitable amount not exceeding 50% of such compensation admissible during the first 90 days. If in the opinion of the said authority, the period of put-off duty has been prolonged due to reasons to be recorded in writing directly attributable to the Sevak.
NOTE 1.- The rate of Dearness Allowance will be based on the increased or decreased amount of compensation admissible under sub-clauses (i) and (ii) above.
NOTE 2.- The payment of compensation for the put off duty period shall not be subject to furnishing of a certificate that the Sevak is not engaged in any other employment, business, profession or vocation:
Provided that a Sevak who has been absconding or remains absent unauthorisedly and is subsequently put off duty shall not be entitled to any compensation as ex-gratia payment:
Provided further that in the event of a Sevak being exonerated, he shall be paid full admissible allowance for the period of put-off duty. In other cases, such allowances for the put-off duty can only be denied to a Sevak after affording him an opportunity and by giving cogent reasons.
(4) Where a penalty of dismissal or removal from engagement imposed upon a Sevak putting him off the duty under this rule is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action with any other direction, the orders of putting him off the duty shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders.
(5) Where a penalty of dismissal or removal from engagement imposed upon a Sevak, is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against the Sevak on the allegations on which the penalty of dismissal or removal was originally imposed, the Sevak shall be deemed to have been put off duty by the Recruiting Authority from the date of original dismissal or removal and shall continue to remain on put off his duty until further orders:
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
NOTE.- The period of putting a Sevak off his duty including the period of deemed putting him off his duty shall be decided by the Competent Authority after de novo proceedings in this regard are finalised and compensation as ex gratia payment for the concerned period shall be regulated according to provisions of sub-rule (3). The break caused due to putting the Sevak off his duty shall be regulated as per extant provisions issued from time to time by the Central Government for this purpose.
NOTE.- Any payment made under this rule to a Sevak on his retirement shall be subject to adjustment of compensation already paid as ex-gratia.”
8. In O.A. Nos.749/2015 and 3540/2015, the relief(s) sought by
the applicants are as follows:
“(a) The part of the Notification dated 12.12.2010 which at the same time deny the applicants regular civil servant and clearly admit that they are the holder of civil post being contradictory in itself as has been held by Hon’ble Supreme Court in its judgment dated 09.12.2014 directing this Learned Tribunal to decide within six months which is reproduced as below:
‘Gramin Dak Sevakas are holders of civil posts but they are outside the regular civil service due to which their appointment will be by direct recruitment.’
This part deny regular civil services deserves to be quashed in view of the fact that his makes the holder of the civil post meaningless though working for more than three decades being paid salary as per pay scales with DA, HRA etc.etc. and working for more than 8 months.
(b) The applicants assail the vires of Rule 3A, 6, and 12 of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules 2011 being unconstitutional, arbitrary, unbridled and uncanalized to the extent of these rules illegal deny the applicants their legitimate expectation as Regular Postal Civil Servant and illegally prohibit the payment of pension and gratuity which the applicants are entitled under the special enactment and the aforesaid Rules pertain to denial of pensions and payment of ex-gratia gratuity, deserves to be quashed.
(c) Directing the respondents to treat the applicants as whole time in employment and salary be paid at par with regular postal employee including conferment of consequential, monetary benefits, gratuity and pension, seniority since the initial date of appointment and quash the illegal schemes that is payment of ex-gratia, gratuity which is de-hors the Special Act i.e. Gratuity Act 1972 as amended in 2009 and further to quash introduction of New Service Discharge Benefit Schemes dated 01.09.2010 and pay the applicants the pension at par with as per the provisions of CCS Pension Rules since they are appointed since 1985 under 1964.
(d) direct the respondents to take into account their past services and do not treat them as fresh appointee on absorption in regular service or transfer and further quash the order downgrading the applicants, if any.
(e) direct the respondents to restructure/remove the anomalies/discrepancies in Fifth Pay Commission and Sixth PayCommission recommendation and pay the applicants at par with regular postal civil servants.”
9. In O.A. No.613/2015, the relief sought by the applicants is as
follows:
“(1) Allow the OA, and direct the respondent to declare the Gramin Dak Sewaks i.e. the applicants as permanent employee of postal Department with all consequential, monetary benefits, gratuity, pension and other benefits.
(2) Pass such further or other order as Hon’ble Tribunal may deem fit and proper in facts and circumstances of the matter.”
10. The learned counsels for the applicant in all the three cases stated that the Hon’ble Supreme Court has already declared the Gramin Dak Sevaks as holding ‘civil posts’ in W.P. No.17/2009.
Moreover, the Hon’ble High Court of Karnataka in the case of Dattappa (supra) has held that past service has to be included for
working out the pensionary benefits of Gramin Dak Sevaks, who were later on absorbed as Group ‘D’ employees. Even in the case of P.K. Rajamma (supra), the court has held that the Gramin Dak
Sevaks hold ‘civil posts’ and that they are entitled for protection under Article 311(2), and though they would be “outside” the regular civil services, there is no doubt that it is a post under the
State.
11. In view of these clear rulings of the Hon’ble Supreme
Court/High Courts, it is contended that the respondents have to
grant the benefit of past service rendered by the applicants as
Gramin Dak Sevaks for the purpose of calculation of pensionary benefits, for those who have been absorbed in Group ‘D’ posts and even for those Gramin Dak Sevaks, who retired as Gramin Dak Sevaks.
12. Per contra, the respondents argued that though the Hon’ble Supreme Court has declared that Gramin Dak Sevaks are civil
posts, but they have treated them as ‘outside’ the regular civilservices. Moreover, the Hon’ble Supreme Court has, at no point, given a finding that they would be governed by the rules applicable to regular Govt. servants, such as, CCS (Pension) Rules, 1972 and,therefore, the Govt. is at liberty to frame separate rules for them. It is in this context that Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 has been framed for Gramin Dak Sevak employees.
13. It was further argued by the learned counsels for the
respondents that Rule 3-A would make it clear that the Gramin Dak Sevaks have 5 hours duty as compared to the normal 8 hours duty of a regular employee. In fact, taking us back in history, even pre-independence days, the learned counsel stated that in order to ensure postal service in remote villages, this system had been introduced and initially local school teachers,shopkeepers etc.used to undertake this task of Gramin Dak Sevaks as a part-time job.
It is stated that, in fact, one of the conditions for appointment as Gramin Dak Sevak was that the person should have some alternative source of income. It is,therefore, contended that the services of Gramin Dak Sevaks, in no way, can be compared to the services of regular employees as their recruitment procedure, service conditions etc. are completely different and the applicants had entered the service as GraminDak Sevaks with clear knowledge of thisand, therefore, cannot now claim parity with the regular employees.
14. In reply, the learned counsel for the applicant stated that though the rules mentioned that Gramin Dak Sevak has working hours of maximum 5 hours during the day, the Talwar Committee had found that in practice, they have to work more than 5 hours and, in fact, had, therefore, suggested not to keep any distinction between Gramin Dak Sevaks and regular employees.
15. Heard the learned counsels for the parties and perused the various documents produced by both the sides including the
judgments.
16. Admittedly, the applicants have to be considered as holding
‘civil posts’ as Gramin Dak Sevaks as that has been now settled by the Hon’ble Supreme Court. Further, in the case of P.K. Rajjamma (supra), Hon’ble Supreme Court has held that these employees would get the benefit of Article 311(2) and that there is no doubt that Gramin Dak Sevak is a post under the State. Moreover, while considering this issue, the Hon’ble High Court at Karnataka in the case of Dattappa (supra), already cited above, has clearly held that the past service as Gramin Dak Sevak has to be counted. On these two issues, therefore, there can be no dispute
.
17. We agree with the contention of the learned counsel for the respondents that there is no order barring the respondents from
framing separate rules for the Gramin Dak Sevaks, as has been done by them by framing the 2011 Rules. The Hon’ble High Court at Karnataka has only held that those Gramin Dak Sevaks, who have been “promoted” as Group ‘D’, will get the benefit of counting the past service as Gramin Dak Sevaks for the purpose of pensionary benefits. The judgment is silent on granting pensionary benefits to Gramin Dak Sevaks. However, Rule 6 and Rule 12 certainly come in conflict with the above judgments of the Hon’ble Supreme Court and Hon’ble High Court at Karnataka cited above and period of service as Gramin Dak Sevak has to be counted for the purpose of pensionary benefits. Rule 3-A, which stipulates the terms and conditions, need not to be tempered with.
18. In view of the facts and law stated above, we are of the
opinion that there is no illegality on the part of the respondents in framing Gramin Dak Sevaks (Conduct and Engagement) Rules,
2011 separately governing the service conditions of Gramin DakSevak employees. Therefore, Rule 3-A stays. However, Rule 6 is indirect conflict with the judgements in Vinod Kumar Saxena(supra), P.K. Rajamma (supra) and Dattappa (supra) cases, as it debars Gramin Dak Sevaks from pension. The direct fall out of these judgments is that a Gramin Dak Sevak, who retires as a Gramin Dak Sevak and not absorbed in Group ‘D’, should be
entitled to get pension based on the period served as Gramin Dak
Sevak
. It cannot be at par with regular employees as the working
hours are different. Since we cannot get into determination of the factual position of whether Gramin Dak Sevaks work for 5 hours or 8 hours or less, we would consider working hours of Gramin Dak Sevak as 5 hours as stipulated in Rule 3-A and, therefore, the period for which their service as Gramin Dak Sevak should be counted for the purpose of pension should be 5/8th of the period actually spent as Gramin Dak Sevaks, for those who retire as Gramin Dak Sevaks.
19. The other demand of the applicants that they be declared as
permanent employees of the Postal Department with parity in pay and allowances cannot be acceded to as they are two different categories and, in any case, the Hon’ble Supreme Court has settled(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.
20. With the above directions, all the three O.As. stand disposed
of. However, the parties are directed to bear their own costs.
(P.K. BASU) (JUSTICE M.S. SULLAR) Member (A) Member (J) the law in this regard that the Tribunal should not venture into
deciding pay scales and service conditions as these are within the domain of the executive and is best left to be decided on the basis of recommendation of expert bodies, such as, Pay Commissions [Union of India & Another Vs. P.V. Hariharan and Another, 1997 SCC (L&S) 838 and Union of India Vs. Makhan Chand Roy, AIR 1997 SC 2391]. This prayer is, therefore, rejected.
21. To summarise, we dispose of the O.As. with the following
directions to the respondents:
(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 purpse 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.
