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
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 tto 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 feederr 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 cannott 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 regulaar 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 theier letterr 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 selecttion 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 forr determining their placement in CCS (Pension) Rules/NPS. The GDS cannot said to be feederr 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 ‘forr 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 fromt 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 Vss 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.)
29th SCOVA – Minutes of the meeting
F.No. 42/16/2016-P&PW(G)
Government of India
Ministry of Personnel, P.G and Pensions
Department of Pension & Pensioners Welfare’
********
3rd Floor, Lok Nayak Bhawan
Khan Market, New Delhi-110003
Date:- 16th Feb, 2017
To
All the Pensioners Associations included in the SCOVA vide Resolution dated 25.08.2015
Subject:- 29th SCOVA meeting under the chairmanship of Hon’ble MOS(PP) – Minutes of the meeting
Please find enclosed herewith minutes of the 29th meeting of Standing Committee of Voluntary Agencies(SCOVA) held under the chairmanship of Hon’ble MOS(PP) on 12.01.2017 for your kind perusal and necessary action. The minutes of the meeting are also available on this Department’s website vvww.pensionersportal.gov.in.
(Sujasha Choudhury)
Director(P)
Minutes of the 29th Meeting of Standing Committee of Voluntary Agencies(SCOVA) held on 12.01.2017 under the Chairmanship of Hon’ble MOS(PP) at Vigyan Bhawan Annexe, New Delhi.
The 29th meeting of Standing Committee of Voluntary Agencies (SCOVA) was held under the chairmanship of Hon’ble MOS(PP) on 12.01.2017.
The list of the participants is at Annexure-1
At the outset, Secretary (P&PW) welcomed the representatives of Pensioners Associations and the participating officers from various Ministries/Departments.
- Secretary (P&PAL),- said that some issues of the last SCOVA meeting have been Two review meetings were held with Defence Pensioners Associations, SCOVA and Ministry of Defence on 27.09.2016 and 20.12.2016 to resolve issues relating to Defence pensioners pending in SCOVA for a long time.
- He said that this Department has implemented Government’s decision on the recommendations of the 7th CPC for revision of pre-2016 pensioners/family pensioners There is no change in the pension fixation formula for those retired/retiring on or after 01.01.2016. The minimum pension has been increased to Rs. 9000/- per month against the existing Rs. 3500/- per month. The ceiling of gratuity has been increased from existing Rs. 10 lakhs to 20 lakhs per month. The rates of ex-gratia lump sum compensation being paid to the families of employees who die in performance of duty has been increased from existing Rs. 10-15 lakh to Rs. 25-35 lakh, depending upon the circumstances in which the death occurs. He further stated that approximately 85% percent grievances have been disposed of by this Department.
- Thereafter, the Action Taken Report on the decisions of the 28th SCOVA meeting and Fresh Agenda Items of the 29th SCOVA meeting were taken up for discussion.
- Discussion on ATR of 28th SCOVA meeting:- Revision of PPOs of pre-2006 pensioners.
CPAO intimated that the issue of revision of the remaining 3200 PPOs for pre-2006 pensioners has been reviewed with banks. The main reason for pendency is non-availability of records. CPAO would prepare fresh list of live pending cases on the basis on e-scrolls which would be provided to the concerned Ministries/Departments to review the pendency. The Ministries/Departments have been asked to give certificates of non-availability of records. The banks have also been asked to do KYC when the pensioners visit them for life cert.–Mc–ate. CPAO also informed that they have not received any grievances in respect of non-revision of these particular PPOs
Since CPAO has expressed reservation about the pending cases, it was decided that CPAO would examine these cases under Audit and treat the pendency as NIL, subject to outcome of Audit.
Ministry of Defence intimated that 2368 (2470) PPOs of Air Force pensioners have been revised. Some discrepancies have been noted which will be resolved within a week. CGDA was requested that the list of cases be shared with the Directorate of Air Veterans (DAV) and with the Air Force Association, New Delhi. DAV would tally the list with their records and revert back with the list of pending cases. On the issue of PPOs of Ordnance Factory, Ambarnath, CGDA committed that the pendency will be disposed of by first week of February, 2017.
It was decided that DoPPW will hold a tripartite meeting with Department of Ex-servicemen Welfare, Directorate of Air Veterans and Defence Pensioners Associations of SCOVA.
Department of Telecom reported that one of the reasons for pendency of 203 cases was that the Maharashtra Circle did not have relevant records. The Department was asked to dispose of the pendency within a week.
It was said that the actual revision of pension had been carried out for all cases, the review was only with reference to issue of revision authorities. The revision authorities would be pending only for those pensioners/family pensioners who are not traceable. Therefore, the matter was decided to be closed. The Ministries/Departments would continue their efforts to attend to specific grievances to trace old records and issue revision authorities at the earliest.
(Action :- CPAO, Ministry of Defence, Department of Telecom, Directorate of Air Veterans ,Disabled War Veterans (India), DoPPW)
(ii) Health Insurance Scheme for pensioners including those residing in Non-CGHS area.
Ministry of Health informed that the final EFC Memo is under submission to the Secretary. The proposal covers Central Government civil employees and pensioners only and that too for indoor treatment. OPD and appliancyould not be covered under the proposed scheme.
Disabled War Veterans (India) raised the issue of covering prosthesis under this scheme and stated that this will facilitate rehabilitation. The Hon’ble MOS(PP) observed that the prosthesis of good quality are now available. It was decided that Secretary (P&PW) will have a meeting with the Department of Empowerment of Persons with Disabilities and Ministry of Health and Family Welfare to discuss the question of covering prosthesis for Civil Government employees/pensioners under CGHS/Medical Insurance.
(Action :- Ministry of Health and DoPPW)
(iii) Special “Higher” Family Pension for widows of the war disabled invalided out of service.
Ministry of Defence has stated that the comments of Service Headquarters on the issue have been sought vide MOD ID Note dated 10.10.2016 which are still awaited.
The Disabled War_Veterans (India) Association, stated that the cases would cover Army personnel mostly and not Navy and Air Force personnel. Department of Ex-servicemen Welfare was requested to arrange a meeting of the concerned Joint Secretary with the Disabled War Veterans(India) to discuss and finalise the issue within a month.
It was decided that Secretary(P&PW) will write to Secretary(ESW) to finalise the issue expeditiously .
(Action:- Department of Ex-servicemen Welfare and DoPPW)
- Extension of CGHS facilities of P&T pensioners.
- (ix) Conversion of Postal Dispensary at Cantt. Road Cuttack to CGHS Wellness Centre
The Ministry of-Health and Family Welfare informed that the recommendation of 7th CPC in this regard is under consideration of the “Allowances Committee” set up after 7th CPC. Department of Expenditure was requested to check and confirm whether the issue is actually under the purview of the “Allowances Committee”. DoPPW will independently seek clarification from the Implementation Cell, Department of Expenditure
(Action:- Ministry of Health and Family Welfare, Department of Expenditure and DoPPW)
- Anomaly in fixation of pension of DoT employees absorbed in BSNL retired 10.2000 and 31.07.2001.
Department of Telecom informed that, as desired by the Department of Expenditure, financial implications on—the formula suggested by DoPPW was being worked out in consultation with BSNL. Meanwhile, CAT Principal Bench has allowed a petition filed by the BSNL absorbee pensioners for fixing their pension only on the basis of IDA pay drawn after absorption in BSNL. Department of Telecom was requested to examine the judgement of CAT.Action:- Department of Telecom)
Merger of 78.2% IDA with basic pension benefit to absorbed BSNL pensioners.
Department of Telecom informed that consequent on approval of the Cabinet, the necessary instructions were issued to the concerned CCAs vide OM dated 18.07.2016. Therefore, the matter was closed.
Extension of benefit of upgraded Grade Pay to pre-2006 retirees of S-12 grade (issue of grant of grade pay of Rs. 4600/- instead of Rs. 4200/-)
Department of Expenditure has observed that the upgraded Grade Pay of Rs. 4600/-was given subsequently outside the recommendation of the 6th CPC. Since this up-gradation is post 6th CPC decision, it is not applicable to those who are holding the pre-revised scale of Rs. 6500-10,500/- and retired before 01.01.2006. Department of Telecom informed that the benefit of Grade pay of Rs. 4600/- to pre-2006 pensioners in pre-revised pay scale of Rs. 6500-10,500/- is sub-judice.
(Action:- Department of Telecom and Department of Expenditure)
- Issues relating to CGHS Wellness Centre, Dehradun- Merger of Survey of India Dispensary in CGHS on the same lines as P&T.
Ministry of Health and Family Welfare informed that the 0/o Surveyor General of India has conveyed that Survey of India dispensaries were established as per the obligations under Factories Act. Therefore, their merger with CGHS on the same lines as in the case of P&T dispensaries is not possible.
Ministry of Health and Family Welfare was requested to examine as to how the provisions of the Act come in the way of merger of these dispensaries with CGHS, particularly when the doctors in these dispensaries are also provided by Ministry of Health under CGHS. Ministry of Health and Family Welfare has stated that they have taken a decision to post 2 more contractual doctors in the CGHS Wellness Centre, Dehradun. Ministry of Health and Family Welfare was requested to post doctors expeditiously.
(Action:- Ministry of Health and Family Welfare)
(x) Stoppage of Recovery of wrongful/excess payments from Railways Pensioners.
Ministry of Railways informed that the matter regarding waiver of recovery and withdrawal of the petition filed in the Court was submitted for the approval of Railway Board and a decision was likely to be taken in 3-4 days. The item was closed.
Delay in commencement of family pension to spouse on death of pensioners .
CPAO intimated that the relevant instructions have been issued on 02.06.2016 . 12 Banks have reported timely commencement of family pension. However, CPAO will revert to the banks based on the reports of the e-scrolls. Also internal audit of the banks at CPPCs are conducted to check the delay. Secretary(P&PW) directed to circulate the copies of instruction issued by CPAO. CPAO will send a report on the delayed cases within a month and DoPPW will take up the issue with the Department of Financial Services.
(Action:- CPAO, DoPPW and Department of Financial Services)
- Payment of (i) Restoration of commutation amount and (ii) Additional Pension on attaining the age of 80 years should be streamlined by the Banks.
CPAO intimated that the relevant instructions have been issued on 02.06.2016 . Secretary(P&PW) directed to circulated the copies of instruction issued by CPAO. CPAO will send a detailed report on the delayed cases within a month and DoPPW will take up the issue with the Department of Financial Services based on the report received from CPAO.
(Action:- CPAO, DoPPW and Department of Financial Services)
- Discussion on Fresh Atenda Items
(29.1) Item wise details of payment made to be shown in Pass Books of Pensioners.
CPAO intimated that instructions are in place to indicate the break-up of various payments to the pensioners at the time of payment of pension. All heads of CPPCs and Government Accounts Departments of the banks have been instructed to streamline their internal system to enforce the existing guidelines. A “Web responsive Pensioners Service” (WRPS) was launched by CPAO which enables the pensioners/family pensioners to see details of pension like monthly pension, DR, Medical Allowance, DA arrears, Commission/Other arrears, recoveries etc. Secretary (P&PW) directed to send copies of relevant CPAO instructions to the various Pensioners Associations and also to take up the matter with Department of Financial Services.
(Action:- CPAO, DoPPW and Department of Financial Services )
(29.2) Amendment/Revision in notification of Life Certificate.
It was clarified that Digital Life Certificate is an additional facility. CPAO stated that there are 3 options for submission of Life Certificate:-
- By presenting himself/herself to the authorised bank officer to record the life certificate
- By producing a Life Certificate in the prescribed Proforma signed by any of the person specified in para 15.2 of the Scheme for payment of pensions to Central Government Civil Pensioners by authorised Banks.
- Though Aadhar based Biometric Authentication system.
Therefore the item was closed.
(29.3) Additional Pension for recipients of disability pension of age 80 years and above.
Department of Ex-servicemen Welfare(DESW) intimated that the issue is under examination. Secretary(P&PW) asked DESW to expedite the matter.
(Action:- Department of Ex-servicemen Welfare)
(29.4) Upgradation of Polyclinic at Bajaj Nagar, Jaipur.
Ministry of Health and Family Weflare informed that the instructions have been issued to Addl. Director(CGHS), Jaipur to make necessary arrangements for repairing the instruments and machinery lying unused and for procurement of equipment for diagnostic facilities like X Ray, Dental X-Ray, Auto Analysers etc. Ministry of Health and Family Welfare stated that up-gradation of facilities will be completed by 31.03.2017.
(Action:- Ministry of Health and Family Welfare)
(29.5) Setting up of CGHS Wellness Centre at Kochi.
The Ministry of Health and Family Welfare intimated that the proposal regarding opening of CGHS Wellness Centre at Kochi is under active consideration.
(Action:- Ministry of Health and Family Welfare)
