UNION OF INDIA & ORS. versus GANDIBA BEHERA

Citation: [2019] 13 S.C.R. 1136 · Decided: 08-11-2019 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 13 S.C.R.
UNION OF INDIA & ORS.
v.
GANDIBA BEHERA
(Civil Appeal No. 8497 of 2019)
NOVEMBER 08, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
ANIRUDDHA BOSE, JJ.]
Service law:
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
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
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
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–
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
 [2019] 13 S.C.R. 1136
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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][1151-
B-C]
UNION OF INDIA & ORS. v. GANDIBA BEHERA
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
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 howev

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