Applicability of CCS (Pension) Rules instead of NPS – Handling of Court Cases

Handling Court cases on the issue of applicability of CCS (Pension) Rules instead of NPS in respect of GDS appointed to regular departmental posts after 01-01-2004

Department of Posts has issued a circular on Handling Court cases on the issue of applicability of CCS (Pension) Rules instead of NPS in respect of GDS appointed to regular departmental posts after 01-01-2004

Immediate

No.99-7/2017-Pension

Government Of India

Department of Posts

(Pension Section)

Dak Bhawan, Sansad Marg,

New Delhi – 110 001

1st February, 2017

To

All Head(S) of Circles

Sub: Handling Court cases on the issue of applicability of CCS (Pension) Rules instead of NPS in respect of GDS appointed to regular departmental posts after 01-01-2004-reg.

Sir/Madam,

It has come to notice that officials, who have been appointed on regular basis after 01-01-2004 under New Pension Schemes have filed OAs before Tribunals praying to cover their case under CCS (Pension) Rules, 1972 by treating them as old entrants. These cases are required to be defended in Court vigilantly from preliminary stages since any adverse directions of any court would cause harm to the interest of the Department.

2. It is therefore considered appropriate to provide some of arguments/ observations, which can be uniformly placed before court for a rational decision of the Court in any case on the issue. If any Tribunal has already given decision for applying CCS (Pension) Rule only on the consideration of GDS service performed prior to the cut off date, appropriate appeal may invariably be filed without any further delay. The grounds should include:

(a) The GDSs are holders of civil posts but are not regular Government Servants. They are a separate cadre, outside the Government service, existing only in the Department of Posts and formed with the primary objective of providing postal services in the remote villages of the county. They become departmental employee from the date of their regular appointment. The Apex Court has established their status as civil posts outside the regular civil services in the case of UOI P.K. Rajamma in 1977.

(b) Extra Departmental Agents (now called Gramin Dak Sevaks) were specifically excluded from the application of CCS (CCA) Rules, 1957 (now 1965) vide MHA Notification No.SRO 609 dated 28-02-1957 at Serial (i) of the list. With this exclusion, this category stands excluded from the purview of term ‘Central Civil Service’ and ‘Central Civil Post’ defined under Rule 2 (c) and that of ‘Government Servant’ defined under Rule 2(h)(i) of the said rules. Thus, holding of civil post outside the regular civil service ipso facto means that Gramin Dak Sevaks are a separate and distinct category confined to Department of Posts as holders of civil post outside the regular civil service; which does not fall under ‘Central Civil Service’ or ‘Central civil Post’ of ‘Government Servant.’ This is also supported by the fact that the Government has not included this category in any of the classification of Group A or B or C or D posts resultant to such exclusion. Further, terms and conditions of their engagement laid down in Rule 3-A (v) of GDS (conduct and Engagement) Rules do specify clearly that a Sevak shall be outside the civil service of the Union.

(c) Gramin Dak Sevaks (GDSs) (earlier known as Extra Departmental Agents (EDAs)) are exclusive to the Department of Posts and the Sevaks so engaged are not required to perform duty beyond a maximum period of 5 hours in a day. GDS post is purely part time job with working hours ranging from 3 to 5 hours and it is obligatory for the person to give an undertaking that he/she has adequate source of livelihood for himself/herself and family. Normally, the Central Government Employees are eligible to serve the Government up to 60 years whereas GDSs are retained up to 65 years of age.

(d) Right from the formation of the system of GDS, appointment of GDS to Group D (regular post) is treated as direct recruitment and not as a promotion. This is because, promotion exists only from like cadres and GDS being outside the Government service cannot form a feeder cadre as far as postman and other cadres are concerned. In a catena of judgments, courts have observed that appointment as postman/GrD/MTS from EDA cannot be termed as promotion as the post of postman/GrD/MTS etc and EDA belong to two different services viz regular postal services and Extra Departmental Service. The judgements of Full bench of Ernakulam Bench of CAT in case of M.A.Mohanan Vs St SPO & Ors may be referred to. Further, CAT Madras in OA No.785 of 2011 dated 28.04.2014 observed that the terms and condition of their employment (of GDSs) are not comparable to that of regular employees of the postal department or of any other department for that matter. In OA No.170/01651/2015 filed by Y.S.Manjunatha, CAT, Bangalore bench has observed that engagement of GDS is not a regular government service and the service rendered as GDS cannot be counted as regular government service to bring a person under old pension scheme.

(e) In a recent judgement in CA Nos 90/2015 and 91/2015 dated 12.8.2016, Hon’ble Supreme Court by referring the decisions of Apex Court in C.C.Padmanabhan & Ors Vs Director of Public Instructions & Ors, Union of India Vs Kameshwar Prasad and the Superintendent of Post Offices & Ors Vs P.K.Rajamma, held that EDAs/GDSs are not in regular service of the postal Department. The Apex Court concluded in the case that selection of EDA or GDS to the post of postman under relevant column of Recruitment Rules is only by way of ‘Direct Recruitment’ and not by way of ‘Promotion’. Copy of judgement has already been circulated to all circles by Staff branch vide their letter No.2-18/2016-SPB-I dated 25.11.2016.

(f) Gramin Dak Sevaks are eligible to be considered for the posts of MTS or Postman in conformity with statutory recruitment rules governing these posts. The Department of Posts MTS Recruitment Rule also clarifies that Gramin Dak Sewaks are holders of Civil Posts, but they are outside the regular civil service due to which their appointment will be by direct recruitment even when selection is on basis of selection-cum-seniority. It also prescribes that on failing recruitment from Gramin Dak Sewaks, the earmarked vacancies will be filled up by direct recruitment from open market. Similar provisions are in the postman and Mail Guard Recruitment Rules. Therefore, the GDS service would have no consideration towards regular service and their appointment in regular service could be only criterion for determining their placement in CCS (Pension) Rules/NPS. The GDS cannot said to be feeder cadre for postman/Group D in view of provisions of the Recruitment Rules.

(g) The provisions under Rule 13 of CCS (Pension) Rule, 1972 are also relevant. It mentions that qualifying service of a Government Servant shall commence from date he takes charge of the post to which is first appointed either substantively or in an officiating or temporary capacity provided that officiating or temporary service is followed without interruption by substantive appointment. Since such applicants were holding a non-governmental post on 01.01.2004 and they were appointed to a Departmental Post after the cut-off date, as per Government decision, NPS will be applicable in all such cases.

(h) Rule 14(1) of CCS (Pension) Rules, 1972 mentions that ‘Service’ of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. Under Rule 14 (2) further provides that ‘for the purposes of sub rule (1), the expression ‘Service’ means service under the Government and paid by that Government from consolidated fund of India or a local fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. Extra Departmental Agents are provided to be specifically excluded from he application of pension under the GDS rules and the Government has also not provided counting of a part of the service rendered by them in the capacity of EDA/GDS on absorption to regular departmental posts.

(i) It is also added that in CA No.13675-13676/2015 in UOI & Others Vs the Registrar & Ors, Hon’ble Supreme Court, considering the rules governing GDS and the fact that GDS employees do not come under the category of full time casual employee, has held that the directions to the Department for formulation of scheme for giving some weightage to GDS service to make good the shortfall in minimum qualifying service of 10 years in regular employment, ought not to have been passed by the learned Tribunal and approved by the High court. The Apex court further observed that the matter pertains to policy and involves financial implications.

3. It is re-iterated that immediate action may be taken in all cases on the issue and it should be ensured that the Court may be apprised of the above facts. The Directorate may be kept informed of the development/progress in each case on the issue. It has been observed in the past that Department has lost many cases due to delayed action. Therefore, it should be ensure that appropriate action should be taken within prescribed timeline.

Yours faithfully,

(Smriti Sharan)

Deputy Director General (Estt.)