whether services rendered by the employees in the postal department in the capacity of Gramin Dak Sevaks (GDS) ought to be computed or notfor the purpose of calculation of the qualifying service of their pension after they got selected in regular posts in the said department. ? Apex court held that There is no provision under the law on thebasis 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. We are also of the opinion that the authorities ought to consider their cases for exercising the power to relax the mandatory requirement of qualifying service underthe 1972 Rules if they find the conditions contained in Rule 88 stand fulfilled in any of these cases. We do not accept the stand of the appellants that just because thatexercise would be prolonged, recourse to Rule 88 oughtnot 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. If in the cases of any of the respondents’ pension order hasalready been issued, the same shall not be disturbed, as has been directed in the case of Union of India & Ors. v Registrar & Anr. (supra). We, accordingly allow these appeals and set aside the judgments under appeal, subject to the following conditions:­ (i) 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. In issuing this direction, we are following the course which was directed to be adopted by this Court in the case of Union of India & Ors. v. Registrar & Anr.(supra). (ii) 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

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8497/2019)
(Arising out of SLP(C) No. 13042 OF 2014)
UNION OF INDIA & ORS. …………. APPELLANTS
VERSUS
GANDIBA BEHERA …………..RESPONDENT
WITH

CIVIL APPEAL NO. 8979/2014
CIVIL APPEAL NO.8498/2019
(Arising out of SLP(C)No.979/2015)
CIVIL APPEAL NO. 9886/2014
CIVIL APPEAL NO. 8674/2015
CIVIL APPEAL NO………………../2019
(Arising out of SLP(C) CC. Nos. 20557­20558/2015)
CIVIL APPEAL NO. 2825/2016
CIVIL APPEAL NO. 5008/2016
CIVIL APPEAL NO.8499/2019
(Arising out of SLP(C)No. 16767/2016)
1
CIVIL APPEAL NO. 8379/2016
CIVIL APPEAL NO. 1580­1581/2017
CIVIL APPEAL NO. 109­110/2017
CIVIL APPEAL NO. 10355/2016
CIVIL APPEAL NO. 10801/2016
CIVIL APPEAL NO. 9518­9520/2017
Special Leave Petition (C) (D) No. 13464/2018
Special Leave Petition (C)No. 16615/2018
Special Leave Petition (C) No. 3392/2019
CIVIL APPEAL NO.8500/2019
(arising out of SLP(C) No.32881/2018)
CIVIL APPEAL NO.8501/2019
(arising out of SLP(C) No.6544/2019)
Special Leave Petition (C) (D) 18007/2019

J U D G M E N T
ANIRUDDHA BOSE, J.
Records reveal that service is not complete in S.L.P.
(C) Diary No.13464/2018, S.L.P.(C) No.16615/2018,
2
S.L.P.(C)No.3392/2019 and S.L.P.(C) Diary
No.18007/2019. Hence these maters are directed to be
de­tagged from this batch of appeals. Let these matters be
placed before the appropriate Bench after completion of
service.

  1. Delay condoned and leave is granted in SLP (C) CC
    Nos. 20557­20558 of 2015 and SLP (C) No.32881 of 2018.
    Leave is also granted in rest of the petitions for
    Special Leave to Appeal.
  2. All these appeals have reached this Court from
    decisions of different Benches of the Central
    Administrative Tribunal and thereafter judgments of the
    High Courts on a common question of law. The dispute in
    these appeals is as to whether services rendered by the
    employees in the postal department in the capacity of
    Gramin Dak Sevaks (GDS) ought to be computed or not
    for the purpose of calculation of the qualifying service of
    3
    their pension after they got selected in regular posts in
    the said department. The respective High Courts, whose
    judgments are under appeal before us, 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 minimum service period in regular
    employment in the said Department for being entitled to
    pension is contained in Central Civil Services (Pension)
    Rules, 1972 and it is 10 years. We shall refer to these
    Rules henceforth as the 1972 Rules. In all these appeals,
    service tenure of the respondents in regular posts 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 with the provisions of these rules
    before completing qualifying service of ten
    years, the amount of service gratuity shall be
    calculated at the rate of half month’s
    4
    emoluments for every completed six monthly
    period of qualifying service.”
  3. There have been separate Rules guiding the services
    of Gramin Dak Sevaks who are also referred to as extradepartmental agents in the postal department. The
    present Rules which has been cited before us is titled
    Gramin Dak Sevaks (Conduct and Engagement) Rules,
    2011 (the 2011 Rules). There was P&T Extra
    Departmental Agents (Conduct & Service) Rules, 1964
    which prevailed earlier covering the same field before
    replaced by Gramin Dak Sevaks (Conduct and
    Employment) Rules, 2001. These Rules ultimately gave
    way to the 2011 Rules. The GDSs have been identified in
    different abbreviated designations over the period of time,
    possibly depending on the nature of work they were
    engaged in. These are EDMC, ED­Packer, Departmental
    runner, EDDA and GDS. The last of these designations
    5
    being the short form of Gramin Dak Sevaks is what they
    are known as at present.
  4. The lead case which has been argued before us
    arises from an application 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
    in Balasore division of the State of Orissa on 1st April,
  5. He continued to work in that capacity until 25th
    May, 1999, from which date, he was engaged in a Group
    ‘D’ post in regular employment through the proper
    selection process. This status as a Group “D” employee
    was conferred on him retrospectively, by way of a
    memorandum issued by the authorities on 30th December
  6. He attained the age of superannuation on 30th
    June, 2008. His claim for pension was, however, denied
    on the ground of not having completed 10 years of
    6
    minimum qualifying service in the Group ‘D’ post. The
    Tribunal, by an order passed on 6th July, 2011, upheld
    the applicant’s plea for having part of his service
    rendered in the capacity of GDS computed for meeting
    the requirement of qualifying service, relying on an earlier
    decision of the Tribunal delivered in O.A. No. 310 of 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 this Tribunal has meanwhile been
    reviewed or reversed by any higher court. In
    view of the above, I find no justifiable reason to
    deviate from the view already taken by this
    Tribunal in the case of Gouranga Ch. Sahoo
    (supra). Hence the respondents are hereby
    directed to bring such of the shortfall period of
    service from the ED employment of the applicant
    to count for the purpose of minimum period of
    ten years qualifying service and accordingly
    sanction and pay the pension and pensionary
    benefits to the applicant from the date of his
    retirement forthwith preferably within a period of
    60 (sixty) days from the date of receipt copy of
    this order; failing which, the applicant shall be
    entitled to 6% on the arrear pension and
    7
    pensionary dues from the date of his retirement
    till actual payment is made and the Respondents
    are free to recover the interest amount from the
    officer who would be found responsible for
    causing delay in payment.”
  7. The Orissa High Court by a judgment delivered on 3rd
    January, 2014 in the writ petition brought by the Union
    of India and the postal authorities found no reason to
    interfere with the Tribunal’s order. The High Court
    directed compliance of the said order of the Tribunal,
    mainly relying on an earlier judgment of the Court
    delivered on 6th December, 2011 in W.P. (C) No. 11665 of
    2011.
  8. In rest of the appeals, the factual disputes are similar
    in nature. Points of law involved are also near­identical.
    For these reasons, we do not consider it necessary to
    individually deal with each of these cases. We, however,
    give below the key factual features of the individual
    appeals in a tabular form :­
    8
    S.
    No.
    Case Number Service Details of Original Applicants
  9. Civil Appeal No. 8979
    of 2014
    08.08.1970–Joined as GDS. (Worked for 28
    years)
    31.12.1998 – Appointed to Group D post.
    30.06.2008— Superannuated
    Qualifying Service Period: 9 years, 6
    months, 1 day.
  10. SLP (C) No. 979 of
    2015
    11.08.1967 – Joined as GDS. (Worked for 29
    years)
    18.10.1996 – Appointed to Group D post.
    31.07.2006 – Superannuated
    Qualifying Service Period: 9 years, 8
    months, 27 days.
  11. Civil Appeal No. 9886
    of 2014
    14.08.1972 – Joined as GDS. (Worked for
    27 years)
    06.09.1999 – Promoted as Postman (Group
    ‘C’ post).
    28.02.2009 – Superannuated.
    Qualifying Service Period: 9 years, 5
    months, 11 days.
  12. Civil Appeal No. 8674
    of 2015
    14.09.1971 – Joined as GDS. (Worked for
    28 years)
    04.09.1999 – Appointed to Group D post.
    30.11.2006 – Superannuated.
    Qualifying Service Period: 7 years, 2
    months, 13 days.
  13. CC No. 20557-20558
    of 2015 in SLP
    (C) ……. of 2015
    29.08.1981 – Joined as EDDA; (Worked for
    16 years)
    24.12.1997 – Appointed to Group D post.
    31.05.2007 – Superannuated.
    Qualifying Service Period: 9 years, 5
    9
    months, 23 days.
  14. Civil Appeal No. 2825
    of 2016
    25.02.1972 – Joined as GDS. (Worked for
    31 years)
    08.03.2003 – Selected as Postman.
    31.10.2012 – Superannuated.
    Qualifying Service Period: 9 years, 7
    months, 23 days.
  15. Civil Appeal No. 5008
    of 2016
    21.02.1979—Joined as GDS. (Worked for
    29 years)
    13.06.2001—Joined as Postman.
    31.10.2010—Superannuated.
    Qualifying Service Period: 9 years, 4
    months, 18 days.
  16. SLP (C) No. 16767 of
    2016
    01.02.1963—Joined as GDS. (Worked for
    29 years)
    30.06.1992—Joined as Mail Peon.
    31.01.2002—Superannuated.
    Qualifying Service Period: 9 years, 7
    months.
  17. Civil Appeal No. 8379
    of 2016
    09.06.1967—Joined as EDMC. (Worked for
    34 years)
    12.09.1997—Assumed charge as Postman.
    31.03.2007—Superannuated.
    Qualifying Service Period: 9 years, 6
    months, 20 days.
  18. Civil Appeal Nos.
    1580-1581 of 2017
    10.01.1963—Joined as Extra Departmental
    Runner. (Worked for 29 years)
    27.02.1992—Joined Group D post.
    31.12.2000—Superannuated.
    Qualifying service period: 8 years, 10
    months, 3 days.
    10
  19. Civil Appeal Nos.
    109-110 of 2017
    22.06.1962—Joined as EDA. (Worked for
    31 years)
    15.11.1993—Joined Group D post.
    31.03.1997—Superannuated.
    Qualifying Service Period: 5 years, 4
    months, 15 days.
  20. Civil Appeal No.
    10355 of 2016
    Worked for 25 years as EDDA
    09.11.2001—Selected and appointed as
    Postman.
    30.06.2011—Superannuated.
    Qualifying Service Period: 9 years, 7
    months, 21 days.
  21. Civil Appeal No.
    10801 of 2016
    July 1972—Joined as EDMC. (Worked for
    27 years)
    15.09.1999—Joined Group D post.
    31.05.2009—Superannuated.
    Qualifying Service Period: 9 years, 8
    months, 16 days.
  22. 14(i) Civil Appeal
    Nos. 9518-20 of 2017
    14.07.1972—Joined as GDS. (Worked for
    30 years)
    25.11.2002—Joined Group D post.
    30.06.2012—Superannuated.
    Qualifying Service Period: 9 years, 7
    months, 6 days.
    14(ii) 05.11.1973—Joined as EDMCA. (Worked
    for 23 years)
    17.04.1997—Joined as Postman.
    31.12.2006—Superannuated.
    Qualifying Service Period: 9 years, 8
    months, 15 days.
    14(iii) 01.11.1971—Became EDM-I. (Worked for
    28 years)
    03.11.1999—Joined in Group D post.
    11
    31.07.2009—Superannuated.
    Qualifying Service Period: 9 years, 8
    months, 29 days.
  23. SLP (C) No. 32881 of
    2018
    25.01.1971—Joined as EDMP. (Worked for
    28 years)
    27.11.1999—Joined Group D post.
    31.08.2009—Superannuated.
    Qualifying Service Period: 9 years, 8
    months, 19 days.
  24. SLP (C) No. 6544 of
    2019
    21.07.1972—Joined as EDDA. (Worked for
    31 years)
    06.08.2003—Joined Group D post.
    30.06.2011—superannuated.
    Qualifying Service Period: 7 years, 10
    months, 9 days.
  25. Learned counsel for the appellants has assailed the
    decision of the Orissa High Court in the case of Gandiba
    Behera (supra) affirming the Tribunal’s order mainly on
    the ground that service undertaken as GDS could not be
    equated with regular service. Service of a GDS carries
    lower working hours (between 3­5 hours). An incumbent
    engaged as Gramin Dak Sevak (GDS) is also entitled to
    pursue any other vocation simultaneously. It has also
    12
    been highlighted on behalf of the appellants that services
    of Gramin Dak Sevaks are regulated by a different set of
    rules and Court ought not to direct the administration or
    executive authorities in the capacity of employer to create
    an altogether new service Rule for a particular set of
    employees.
  26. In the case of Superintendent of Post Offices and
    Others v. P.K. Rajamma [(1977) 3 SCC 94], it was laid
    down that Extra­Departmental Agents connected with the
    postal departments held civil posts. That finding was
    given while dealing with applicability of Article 311 of the
    Constitution in relation to dismissal orders passed
    against the Extra­Departmental Agents. In the case of
    Chet Ram vs. Jit Singh [(2008) 14 SCC 427], this
    Court examined the question as to whether a GDS is a
    government servant or not. This issue came up for
    consideration before this Court in a dispute concerning
    13
    eligibility of a GDS to become a member of Nagar
    Panchayat in terms of the Punjab State Election
    Commission Act, 1994. The opinion of the Court was that
    such agents were government servants holding civil
    posts. The Constitution Bench judgment in the case of
    D.S. Nakara & Ors. vs. Union of India [(1983) 1 SCC
    305] was also cited on behalf of the respondents in
    support of their stand that there could be no
    discrimination between two sets of pensioners.
  27. A set of GDSs who stood absorbed as Group ‘D’
    employees had approached this Court invoking the
    jurisdiction of the Court under Article 32 of the
    Constitution of India seeking benefits akin to the ones
    which form the subject­matter of these appeals. That
    petition was registered as Writ Petition (Civil) No.
    17/2009. The Rule involved in that writ petition was
    Department of Posts, (Multi­Tasking Staff)
    14
    Recruitment Rules, 2010. There was specific provision
    in the said Rules for declaring GDSs as holders of civil
    posts but they were outside regular civil service. The said
    writ petition was disposed of by an order passed on 9th
    December, 2014 giving the writ petitioners liberty to
    approach the Central Administrative Tribunal, Principal
    Bench, New Delhi. Subsequently, three applications were
    instituted before the Principal Bench of the Tribunal.
    These were registered as O.A. Nos. 749/2015, 3540/2015
    and O.A. No. 613/2015. The applications of the
    individual GDSs were allowed by the Tribunal. The
    decision in that regard was delivered on 17th November
    2016 (Vinod Kumar Saxena & Ors. Vs. Union of India
    & Ors.) and the Tribunal directed :­
    “(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
    15
    Sevaks, who retire as Gramin Dak Sevak without
    absorption as regular Group ‘D’ staff, but the period
    to be counted for the purpose 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.”

  1. A Bench of this Court presided over by one of us
    (Hon’ble Justice Ranjan Gogoi) has examined a similar
    question in Civil Appeal Nos. 13675­13676 of 2015
    (Union of India & Ors. Vs. The Registrar & Anr.)
    decided on 24th November, 2015. The scope of the dispute
    of that appeal would appear from the following passage of
    the judgment:­
    “The respondent no. 2 viz. N.S. Poonusamy
    worked as an Extra Departmental Agent in the
    Postal Department from the year 1968 to 1993.
    He was regularized on 01.04.1993 and retired on
    31.05.2002. The second respondent had
    completed nine years and two months of service
    but he was not granted any pension. Therefore,
    he approached the learned Tribunal which
    16
    directed that a scheme be framed to give some
    benefit of service rendered by such employees as
    Extra Departmental Agents so as to enable them
    to earn the requisite period of qualifying service
    for pension i.e. 10 years. Aggrieved, the Union of
    India moved the High Court by way of a writ
    petition out of which these appeals have arisen.”
  2. Such direction was issued by the Tribunal, interalia, on the basis of a circular of DoPT issued in the year
  3. The said circular provided that service rendered by
    an Extra Departmental Agent to the extent of 50% of the
    period thereof was to be added to the period of regular
    service for the purpose of entitlement to pension. During
    pendency of the appeal, however, the Central
    Government had issued order granting regular pension to
    the Respondent No.2 in that appeal.
  4. Allowing the appeal of the Union of India, it was
    held by this Court in that case:­
    “The appellant­Union of India has filed an
    additional affidavit on 26.10.2015 stating inter alia
    that the Extra Departmental Agents covered by the
    DOP&T Circular, 1991, are full time casual
    17
    employees, whereas the second respondent is a
    part time casual employee and under the Rules
    governing his service framed in the year 1964 and
    amended in the years 2001 and 2011, employees
    like the respondent no. 2 are required to render
    between three to five hours of service every day. At
    the time of their appointment they are required
    to give an undertaking to the effect that they have
    alternative source of income to support their
    families. The need for appointment of such
    employees, according to the Union of India, is to
    reach out to the addresses in far flung villages in
    the country where establishment and maintenance
    of a regular post office is not a viable proposition.
    Attention is also drawn to the provisions of the
    aforesaid Rules to the effect that such employees
    are not entitled to pension but would be entitled to
    ex­gratia gratuity and such of the payments as may
    be decided by the Government from time to time.
    Considering the fact that the DOP&T Circular,
    1991, which form the basis of the impugned
    direction of the learned Tribunal as affirmed by the
    High Court, pertained to full time casual employees
    to which category the second respondent does
    not belong and the provisions of the Rules
    governing the conditions of service of the
    respondent as noted above, we are of the view that
    the impugned directions ought not to have been
    passed by the learned Tribunal and approved by
    the High Court. The matter pertains to policy and
    involved financial implications. That apart, in view
    of the facts placed before us, as noted above, we
    deem it proper to interfere with the impugned
    directions and allow these appeals filed by the
    Union of India. We, however, make it clear that the
    pension granted to the second respondent will not
    be affected by this order and the said respondent
    will continue to enjoy the benefit of pension in
    accordance with the provisions of law.”
    18
  5. The respondents have also referred to clause 6 of the
    2011 Rules which stipulates:­
    “The Sevaks shall not be entitled to any pension.
    However, they shall be entitled to ex­gratia
    gratuity or any other payment as may be decided
    by the Government from time to time.”
    This particular Rule, making service of this category
    of employees non­pensionable however, has been struck
    down as unconstitutional by the Principal Bench of the
    Central Administrative Tribunal, New Delhi by a decision
    delivered on 17th November, 2016. We are apprised in
    course of hearing of these appeals by the learned counsel
    for the Central Government that the said decision of the
    Tribunal has been challenged before the Delhi High Court
    by the Union of India by way of a Writ Petition, registered
    as W.P. (C) No. 832 of 2018. We are also informed that no
    effective order has as yet been passed by the Delhi High
    Court in the said writ petition. In the judgment giving rise
    19
    to Civil Appeal No. 109­110 of 2017, a similar provision
    of the 1964 Rules, being Clause 4 thereof has also been
    invalidated by the Punjab & Haryana High Court. Though
    the fact that the service of GDS was not pensionable was
    one of 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 to why the plea of the GDS
    was turned down by this Court. We have reproduced
    above the relevant passages from the said judgment
    containing the reasoning for allowing the appeal. For
    adjudication of this set of appeals, thus the proceeding in
    which the Rule making service of GDS non­pensionable
    has been struck down is not of much relevance. The
    controversy which we are dealing with in this judgment is
    whether the period of service rendered by a regular staff
    of the postal department while he was serving as GDS
    20
    would be computed for the purpose of determining his
    qualifying service to entitle him to get pension.
  6. The case of D.S. Nakara (supra) has been relied
    upon on behalf of the respondents in support of their
    contention that there cannot be any artificial
    discrimination between two groups of pensioners. But the
    factual context of the case of D.S. Nakara (supra) is
    different. The discrimination which was challenged in
    that case related to two sets of retired Armed Forces
    personnel who were categorised on the basis of their
    dates of retirement and one set had better terms of
    pension. The decisions in the cases of P.K. Rajamma
    (supra) and Chet Ram (supra) are for the proposition
    that the respondents held civil posts as GDS and were
    government servants. But again ratio of these authorities
    cannot be applied to combine the services rendered by
    GDSs in posts guided by an altogether different service
    21
    rule with their services in regular employment. The other
    authority on which reliance has been placed on behalf of
    the respondents is a judgment of this Court delivered on
    23rd August, 2017 in the case of Habib Khan v. State of
    Uttarakhand and Others [2018 (1) SLR 724 (SC)]. That
    case arose out of a similar dispute involving a workcharged employee of the State of Uttarakhand who
    wanted his service in that capacity counted for
    computing the qualifying service in regular post on the
    question of grant of pension. This judgment was also
    delivered by a two­Judge Bench of which Hon’ble Justice
    Ranjan Gogoi, before His Lordship assumed the post of
    Chief Justice of India, was a member. The aforesaid
    decision followed an earlier judgment of this Court
    delivered in the case of Punjab State Electricity Board
    and Another v. Nakara Singh and Another [(2010) 4
    SCC 317]. The latter case arose out of similar claims of
    22
    work charged employees who were engaged in the
    Irrigation and Power Department of the State of Punjab.
    The relevant provision of the Punjab Civil Services Rules
    allowed temporary or officiating service under the State
    Government without interruption followed by
    confirmation in the same or another post to be counted
    in full as qualifying service but excluded the period of
    service in work charged establishment. The aforesaid
    Rule was struck down by the Full­Bench of the Punjab
    and Haryana High Court. The decision of this Court in
    the case of Nakara Singh (supra) was however founded
    on two circulars which permitted counting the period of
    service rendered by a work charged employee in the
    Central Government or the State Government for the
    purpose of computing pensionary benefits as an
    employee of the Punjab State Electricity Board. The
    respondents in these appeals also cannot be held to be
    23
    work­charged employees. The said category of employees,
    i.e. work­charged employees are engaged against specific
    work and their pay and allowances are chargeable to
    such work. But the scope of respondents’ work as GDS
    was part­time 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
    whole­time 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
    pre­dated because of delay on the part of the authorities
    in holding the selection process. We do not agree with
    the view of the High Court on this count in judgments
    24
    which form subject of appeal in Civil Appeal No. 5008 of
    2016, SLP(C)No.16767 of 2016, Civil Appeal No. 8379 of
    2016 and Civil Appeal No. 10801 of 2016. Service tenure
    of an employee in a particular post cannot be artificially
    extended in that manner in the absence of any specific
    legal provision.
  7. In the case of Union of India & Ors. v the
    Registrar & Anr. (supra), a plea similar to that made by
    the GDSs for computation of service in that capacity was
    specifically rejected. 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 in this
    set of appeals. 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. (supra). As the post of GDS did not
    25
    constitute full­time employment, the benefits of the said
    circular cannot aid the respondents. Thus, there being a
    clear cut finding on similarly placed employees, we do not
    think we can apply the ratio of the judgment delivered in
    the case of Habib Khan (supra) in support of the
    respondents’ plea. An unreported judgment of Karnataka
    High Court delivered on 17th June, 2011 in the case of
    W.P. No. 81699/2011 Union of India and Others Vs.
    Dattappa has also been cited on behalf of the
    respondents. This judgment went in favour of counting
    the period of service as extra­departmental Agent for
    qualifying service in relation to pension and the Division
    Bench of the Karnataka High Court proceeded on the
    basis that for all intents and purpose, the employment
    was continuous in nature and it was not as if it was from
    one service to another. But, this view has not been
    26
    accepted by this Court in the case of Union of India &
    Ors. Vs. Registrar & Anr. (supra).
  8. It is also the 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. Said Rule 49(3) specifies: ­
    “In calculating the length of qualifying service,
    fraction of a year equal to three months and
    above shall be treated as a completed one halfyear and reckoned as qualifying service.”
    Arguments were advanced 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. But on a plain
    reading of the said Rule, in our view such an
    interpretation cannot be given. The Rule contemplates
    27
    one time benefit in case of service of more than 3 months
    in fraction of a year.
  9. 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. This
    provision as embodied in Rule 88, provides:­
    “88. Power to relax.
    Where any Ministry or Department of the
    Government is satisfied that the operation of
    these rules, causes undue hardship in any
    particular case, that Ministry or Department, as
    the case may be, may, by order for reasons to be
    recorded in writing, dispense with or relax the
    requirements of that rule to such extent and
    subject to such exceptions and conditions as it
    may consider necessary for dealing with the case
    in a just and equitable manner:
    Provided that no such order shall be made
    except with the concurrence of the Department
    of Pension & Pensioner’s Welfare.”
    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
    28
    power to relax is exercised in each case of marginal
    shortfall in qualifying service, that would constitute an
    endless exercise.
  10. Having regard to the provisions of the aforesaid
    Rules relating to qualifying service requirement, in our
    opinion the services rendered by the respondents as GDS
    or other Extra­Departmental 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 we also find 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 we cannot trace
    our power or jurisdiction to any legal principle which
    could permit us to fill up the shortfall by importing into
    their service tenure, the period of work they rendered as
    GDS or its variants. At the same time, we also find that
    29
    in the case of Union of India & Ors. v. The Registrar &
    Anr. (supra), though the incumbent therein (being
    respondent no.2) had completed nine years and two
    months of service, the Union of India had passed orders
    granting him regular pension. This Court in the order
    passed on 24th November 2015 had protected his pension
    though the appeal of Union of India was allowed.
  11. For the reasons we have already discussed, we are of
    the opinion that 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.
  12. We are also of the opinion that the authorities ought
    to consider their cases for exercising the power to relax
    30
    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. We do not
    accept the stand of the appellants that 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. If in
    the cases of any of the respondents’ pension order has
    already been issued, the same shall not be disturbed, as
    has been directed in the case of Union of India & Ors. v
    Registrar & Anr. (supra). We, accordingly allow these
    appeals and set aside the judgments under appeal,
    subject to the following conditions:­
    (i) 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. In
    31
    issuing this direction, we are following the
    course which was directed to be adopted by
    this Court in the case of Union of India & Ors.
    v. Registrar & Anr.(supra).
    (ii) 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.
  13. Interim orders passed in these appeals, if any, shall
    stand dissolved. All connected applications shall stand
    disposed of.
  14. There shall be no order as to costs.
    …………………………………..CJI
    (Ranjan Gogoi)
    ……………………………………J
    (Deepak Gupta)
    …………………………………..J
    (Aniruddha Bose)
    New Delhi
    Dated: November 08, 2019.
    32