The GDS (Conduct & Employment) rules, 2001 are not
statutory and were framed under the belief that the ED Agents are not civil
servants within the purview of Article 309 of the Constitution of India.
It appears that till about the year 1935, there were no separate
set of Rules to regulate the conduct and discipline of ED Agents. In that year
the Director General, Post & Telegraphs department framed rules relating
to appointments, penalties and appeals
vide DG P&T Circular No.3 dated 16-04-1935.
In the year 1959, however, Extra Departmental Agents were
declared as holders of Civil Posts within the purview of Article 309 of the
Constitution. Accordingly, in exercise of the powers conferred by the proviso
to that Article, statutory rules regulating their appointment and conditions
were framed and promulgated on 25-07-1959 vide GSR No.890.
The Department of Posts since 1960 continues to hold the
view that the Extra Departmental Agents are not holders of Civil Post even after
the land mark judgement of the Hon’ble Supreme Court in Gokulananda Das’s
case decided on 22-04-1977 wherein, it
has been categorically held that Extra Departmental Agents are holders of Civil
Post.
The Central Administrative Tribunal, Ernakulam Bench
rejected the argument of the department put forth before them that the ED Agents
have been declared as holders of Civil Post for the purpose of protections and
safe guard in Article 311 (2) and observed that :-
“WE FIND NO WARRANT FOR READING THE RESTRICTION IN TO THE
DECLARATION OF LAW IN RAJAMMA’S CASE AND LIMITING IT TO ARTICLE – 311, THE
DECLARATION IS THAT EXTRA DEPARTMENTAL AGENTS ARE HOLDERS OF CIVIL POST” – (O.A.
No.584/95 decided on 23-01-1996)
The position has been further crystallized by the Supreme
Court while holding that Extra Departmental Agents are not workmen attracting the
provisions of the Industrial Dispute Act, 1947, it has been reiterated that ED
Agents are Civil Servants regulated by these Conduct Rules” – (Civil Appeal
No.3385-86 of 1966 decided on 02-02-1996)
The repeated attempt to read Article 311(2) in isolation is
entirely misconceived and untenable.
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ED SYSTEM - VIOLATIVE OF ARTICLES 14 & 16 OF CONSTITUTION OF INDIA
Articles 14 & 16 strike at arbitrariness in State action and ensure fairness and quality of treatment.
Apparently, ED Agents, who get fixed wages without increments, no leave, no pensionary benefits or social security are being discriminated.
As a result of the above discussion, the Extra Departmental Agents have to be included within the overall class of Civil Servants, being holders of Civil Posts.
They can be grouped as "additional" to the departmental employees but they can not be classified as class apart from the Civil Servants.
At any rate they can not be classified with the sole object of not granting them benefit which accrue to a departmental employee.
The plea taken by the Department before the Second and the Third Pay Commissions and also before the various learned Tribunals that ED Agents are a class apart is entirely misconceived.
It is violative of Article 14 and 16 of the Constitution .
-----Justice Talwar
source : GDS REFRESHER - compiled by Shri K.V.SRIDHARAN, GENL. SECRETARY, AIPEU Gr.C (CHQ)
