VIKRAM SHARMA v. D/O POST

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pending payment of NPS amount due to non supply of attested copies of Aadhar, PAN card etc) and direct the respondents to pay pension to the applicant under the Old Pension scheme instead of the New Pension scheme and to pay the arrears.

3. The Brief facts of the case as stated by the applicant are that he was initially appointed as EDBPM, Pali on 14.6.1991. He was promoted to the post of postman under the departmental quota through exam and joined on the promotional post on 24.05.2007. He was again promoted under the Departmental quota as PA and joined his duty vide memo dated 21.03.2016.

4. The applicant retired on 30.11.2018 on reaching the age of superannuation. However, his pension papers were prepared treating his services in NPS instead of OPS.

5. It is the contention of the applicant that this is totally arbitrary and illegal because the initial appointment of the applicant was on 14.6.1991 and therefore, he should have been considered under the OPS and not NPS as, as per the DOPT OM dated 11.6.2020, all Central Govt employees, who were appointed prior to 01.01.2004, would be governed by the OPS. He never entered into the service from direct recruitment on 24.5.2007 but he was only promoted to the post of postman and then PA.

6. The learned counsel for the applicant has vehemently argued that the applicant"s case should be treated under OPS by taking his date of joining the service as 14.06.1991 and not 24.07.2007 as he was only promoted from the post of EDBPM to Postman and therefore the service of the applicant should not be treated as Direct recruitment to the post of Postman. He argued that since his date of joining is

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14.06.1991, he is squarely covered by the DOPT rule of OPS as he has joined before 01.01.2004.

7. Learned counsel for the applicant has relied upon the following judgments in support of his case:-

(i) Judgment of Hon"ble High Court of Allahabad in Writ A No.11132 of 2022 "Avinashi Prasad vs. Union of India and three Others" [2024:AHC:131406-DB] decided on

13.08.2024.

(ii) Judgment of Hon"ble High Court of Judicature at Allahabad, Lucknow Bench in the matter of "Dr.Shyam Kumar vs. State of U.P. through, Principal Secretary", passed in Writ A No.8968 of 2022 dated 17.02.2023.

(iii) Judgment and direction passed in CAT, Allahabad Bench, in OA No.1025 of 2021 "Ram Niwas Sharma vs. Union of India and others' decided on 25.08.2023.

(iv) Judgment and direction issued by CAT, Chennai Bench, in OA No.310/01133/2021 "R.GAnesan, vs. Union of India and others" decided on 16.10.2023.

8. The Respondents have filed their reply. They submit that the applicant was initially engaged as EDBPM on 14.06.1991. The post of EDBPM is purely as an agent of Department and not a regular post for which a time related continuity allowance is paid instead of full time salary and allowance. As per the terms and conditions of engagement of EDBPM, he should have an adequate means of livelihood and the allowance for his work as EDBPM must be supplementary to his income. Also, the letter of DOPT dated 11.6.2020, clearly states that the employees working in a pensioner post before 010.1.2004 will be governed by OPS, but the applicant was only an agent upto

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07.05.2007 and not a regular employee with a pensionable post and not entitled for the benefits of OPS and Original Application to be dismissed.

9. Counsel for the respondents has relied upon the judgments of Y. Najithamol & Ors vs. Saumya S.D. & Ors reported in (2016) 9 SCC 352 or AIR 2016 SC 3789 and judgment and order passed by CAT Chandigarh Bench in Satish Chand vs. D/O Post in OA No.581/2018 dated 29.11.2019.

10. We have heard the learned counsels for both the parties at length and perused the entire papers annexed with this original application.

11. The question to be decided here is whether the service rendered by an employee as GDS can be counted as regular service for the purpose of pension. Also, whether the appointment of a GDS to the postman cadre is to be considered as promotion or direct recruitment?

12. Both the counsels made available several judgments of different CAT benches on the issue in their respective arguments.

13. As per Rule 3A of the GDS(Conduct and Service Rules), the Terms and Conditions of Engagement have been specified. These are as under :

(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/administrative/vigilance ground;

(v) A Sevak shall be outside the Civil Service ofthe 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 & within delivery

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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 RuIe 10 of the Conduct & Engagement Rules, requiring removal/dismissal.

(viii) Post Office shall be located in the accommodation to be provided by Gramin Dak Sevak Branch Postmaster suitable for use as Post Office premises. However, where accommodation is provided for Post Offices by the Central/ State Government/local Government/Village Panchayat etc. the same will be used for Post Office premises.

(ix) Combination of duties of a Sevak shall be permissible The Rules itself clarify that a GDS will not work for more than 5 hours, should have other sources of income besides the allowances paid by the Government for adequate means of livelihood for himself and his family, will be outside the Civil Service of the Union and importantly, shall not claim to be at par with the Central Government employees.

14. Further, in the Recruitment Rules for GDS as published by the Department of Posts, in the column - Method of Recruitment, whether by Direct Recruitment or promotion, the following has been mentioned:

(i) 25% by promotion by seniority cum fitness of Multi Tasking Staff of the recruiting Postal Division, failing which, the unfilled vacancies shall be added to the number of vacancies to be filled as per (iii) below;

(ii) (a) 25% by promotion from Multi Tasking Staff of the recruiting Postal Division on the basis of Limited Departmental Competitive Examination, failing which;-

(b) By promotion from Multi Tasking Staff of all other Postal Divisions of the Circle on the basis of Limited Departmental Competitive Examination, failing which;-

(c) By promotion from Multi Tasking Staff of Railway Mail Service Divisions of the Circle on the basis of Limited Departmental Competitive Examination, failing which, the unfilled vacancies shall be added to the number of vacancies to be filled as per (iii) below;-

"(iii) (a) 50% by direct recruitment on the basis of competitive examination limited to Gramin Dak Sevaks* of the recruiting Postal Division, who have worked regularly for five years in that capacity, as on the 1st day of January of the year to which the vacancy(ies) belong to or as per the guidelines issued by Government of India from time to time, failing which;-

(b) By direct recruitment on the basis of Competitive Examination limited to Gramin Dak Sevaks* of all other Postal Divisions of the Circle, who have worked regularly for five years in that capacity as on the 1st day of January of the year to which the vacancy(ies) belong to or as per the guidelines issued by Government of India from time to time, failing which;-

(c) By direct recruitment on the basis of Competitive Examination limited to Gramin Dak Sevaks* of all Railway Mail Service Divisions of the Circle, who have worked regularly for five years in

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that capacity as on the 1st day of January of the year to which the vacancy (ies) belong to or as per the guidelines issued by Government of India from time to time, failing which;- (d) By direct recruitment from open market as per the scheme circulated by the Department of Posts from time to time."

15. As can be seen, in the case of MTS, seniority cum fitness has been used whereas in the case of GDS, the word direct recruitment has been used instead of seniority.

16. In the Column 6 regarding age limit for Direct Recruits also, it has been mentioned clearly that *Gramin Dak Sevaks are holders of Civil posts but they are outside the regular Civil Service due to which their appointment shall be treated as direct recruitment.

17. The question of whether the appointment of GDS to the regular post is to be considered as promotion or direct recruitment, has already been discussed by a Full Bench of the Ernakulam Bench of the Central Administrative Tribunal in the case of M.A. Mohanan v. The Senior Superintendent of Post Offices & Ors. The majority opinion of the Tribunal held as under:

"As the name itself indicates, EDAs are not departmental employees. They become departmental employees from the date of their regular absorption as such. And promotions are only for departmental employees. Therefore, EDAs cannot be treated as 'promoted' as Postmen. They can be treated as only appointed as Postmen. It is further seen from instructions of Director General Posts under Rule 4 of Swamy's publication referred to earlier that EDAs service are terminated on appointment as Postman and hence they become eligible for ex gratia gratuity. If the recruitment of EDAs as Postman is treated as a promotion, the question of termination will not arise. This also leads one to conclude that the recruitment of EDAs as Postman cannot be treated as one of promotion. Further, Hon'ble Supreme Court in C.C Padmanabhan v. Director Of Public Instructions & Others, 1980 (Suppl.) SCC 668 = 1981(1) SLJ 165 (SC), observed that 'Promotion' as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a

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promotion if he is appointed to another post which satisfies either of the two conditions, namely that the new post is in higher category of the same service or class. Applying the above criteria, appointment as Postman from EDA cannot be termed as promotion as the posts of Postman and EDA belong to two different services viz. regular Postal Service' and 'Extra Departmental Postal Service.'"

18. Further, in Y. Najithamol & ors vs Soumya S.D & ors (supra), the Apex Court has concluded that:

"5. The essential question of law which arises for our consideration in the instant case is whether the appointment of the appellants to the post of Postman is by way of direct recruitment or by promotion.

6. We first turn our attention to the relevant rules at play in the instant case, which are the Recruitment Rules. The Schedule to the said Recruitment Rules specifies the method of qualifications etc. relating posts. Column 1 specifies the name of the post as Postman/Village Postman, and Column 3 specifies it to be a Group 'C' post.

7. Column 11 of the Recruitment Rules, which is at the heart of the controversy reads as under:

"Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods :-

1. 50% by promotion, failing which by Extra Departmental Agents on the basis of their merit in the Departmental Examination.

2. 50% by Extra Departmental Agents of the recruiting division of Unit, in the following manner, namely:

(i) 25% of vacancies of postman shall be filled up from amongst Extra Departmental Agents with a minimum of 5 years of service on the basis of their seniority, failing which by the Extra Departmental Agents on the basis of Departmental examination.

(ii) 25% from amongst Extra Departmental Agents on the basis of their merit in the departmental examination."

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3. If the vacancies remained unfilled by EDAs of the recruiting division, such vacancies may be so filled by EDAs of the postal division failing in the Zone of Regional Director.

4. If the vacancies remained unfilled by EDAs of the recruiting units such vacancies may be filled by EDAs of the postal divisions located at the same station. Vacancies remaining unfilled will be thrown upon to Extra Departmental Agents in the region.

5. Any vacancy remaining unfilled shall be filled up by direct recruitment through the nominees of the Employment Exchange."

A careful reading of the above Column makes it clear that essentially two 'pools' are envisaged from which appointments to the post of Postman can be made. One is the pool of those candidates who are being promoted, and the other is the pool of the Extra Departmental Agents who are appointed to the said post after passing a departmental examination. 50% of the candidates being appointed to the post of Postman are selected by way of promotion. The remaining 50% of the candidates are selected in two ways. 25% of the candidates are selected from amongst the Extra Departmental Agents on the basis of their seniority in service, and the other 25% candidates are selected from the Extra Departmental Agents based on their merit in the Departmental Examination.

8. Further, Column 12 of the Recruitment Rules reads as under:

"In case of recruitment by promotion/deputation/transfer grade from which promotion/deputation/transfer to be made:

1. Promotion from Group 'D' officials who have put in three years of regular and satisfactory service as on the closing date for receipt of applications through a Departmental examination.

2. Extra Departmental Agents through a Departmental Examination.

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3. Direct recruitment through a Departmental Examination."

The post in the instant case, that of Postman is a Group 'C' post. Thus, it is quite natural that 'promotion' to the said post can happen only from the feeder post, which in the instant case are the Group 'D' posts. Admittedly, GDS is not a Group 'D' post, and members of GDS are merely Extra Departmental Agents."

"9. At this stage, it is also useful to refer to the decision of this Court in the case of C.C Padmanabhan v. Director Of Public Instructions & Others. , wherein it was held as under:

"This definition fully conforms to the meaning of 'promotion' as understood in ordinary parlance and also as a term frequently used in cases involving service laws. According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions, namely-

(i) that the new post is in a higher category of the same service or class of service;

(ii) the new post carries a higher grade in the same service or class."

Promotion to a post, thus, can only happen when the promotional post and the post being promoted from are a part of the same class of service. Gramin Dak Sevak is a civil post, but is not a part of the regular service of the postal department."

19. Recently, the Apex Court in the case of Gandiba Behera vs UOI (Civil Appeal No.8497/2019, arising out of SLP (C) No.13042 of 2014) [AIRONLINE 2019 SC 2018] dated 8.11.2019 have clarified regarding the counting of service rendered as GDS for the purpose of pension as under:

"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."

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20. We have also perused the OM dated 11.06.2020 issued by Dopt on subject- „Mobility of Personnel amongst Central/State & Autonomous Bodies while working under Pensionable establishment regarding which has been relief upon by Applicant, while considering the OM dated 11.06.2020 it is relevant to go through the terms and conditions of appointment of GDS/EDBPM, which has been discussed in Hon"ble Supreme Court order of Y. Najithamol (supra), wherein, Hon"ble Supreme Court held that "Gramin Dak Sevak is civil post, but is not part of regular service of the postal department". Therefore, in our view, the OM dated 11.06.2020 is not applicable in the case of the applicant and also the judgments relied upon by the applicant, are not applicable in the present matter, as discussed above.

21. In view of the GDS Service Rules and the above cases decided by the Apex Court, it is very clear that the appointment to the post of postman from GDS is to be counted as direct recruitment and not promotion and that the services rendered by the GDS cannot be factored in for computing their pension.

22. Since, the applicant joined the Department as a postman i.e. a regular employee only on 24.05.2007 which is after the cut-off date given by the DOPT for the OPS, the case of the applicant for grant of OPS by counting his past services rendered as GDS is not maintainable and therefore, the Original Application is liable to be dismissed. Accordingly, instant Original Application is dismissed.

23. Pending MAs, if any, stand disposed of, accordingly. No order as to costs.

(Ms. Manju Pandey) (Mr. Rajnish Kumar Rai)

Member (A) Member (J) vivek/