Wednesday, July 2, 2014
7th CPC - NFPE & FNPO Memorandum with GDS issue
CHAPTER – XXXVIII
GRAMIN DAK SEWAKS
38 :1 GDS IN POSTAL – AN ANACHRONISM
38:1:1 The postal Department employs the largest number of Government employees, next to Railways and Defense. Nearly half of its workforce is called the Grameen Dak Sewaks, the new nomenclature given for the Extra Departmental Agents. The system of EDAs was evolved by the British Colonial Government to sustain a postal system at a cheaper cost especially in rural areas.
38:1:2 Despite the enactment of very many legislations to prohibit the exploitation of workers,the Government continued with this system. No doubt in the post independence era, at the instance and the persuasion of the Unions of regular employees, certain benefits were accorded to them. Till 1963, the GDS or the Extra Departmental Agents were treated as Government employees and were covered by the service conditions applicable to civil servants.
38:1:3 However, the Department of Posts reversed this position thereafter and contended that they are not Central Government employees. The Honourable Supreme Court in 1977 declared that they are holders of Civil Posts. Justice Talwar Committee appointed by the Govt. to look into the issues pertaining to GDS declared that the GDS are holders of Civil posts and all benefits similar to regular employees must be extended to them. However, the Government did not accept this recommendation of the committee, which they themselves set up.
38:1:4 On the specific suggestion of the Postal Department, the Government set up a separate Committee called the Natarajamurthy Committee to go into their service conditions and suggest improvement on the lines of the recommendations of the 6th CPC. The recommendations of this Committee were totally disappointing and the GDS in the post 6th CPC era is worse off.
38:2 Justification to consider the GDS issues by the Seventh Pay Commission
38:2:1 The justification for consideration of their cases by the Seventh Pay Commission is narrated below for the kind and favourable consideration of the Seventh Pay Commission.
38:2:2 The earlier claim of the Union of India that the relations between Extra Departmental Agents and the Govt. was one of principal and agent and not of master and servant has been emphatically rejected by the Hon’ble Supreme Court in Superintendent of Post Office V/s. P. K. Rajamma, 1977 (3) SCR 678 and declared that they are holders of Civil Post.
38:2:3 The observation of the Fourth Central Pay Commission is furnished inter alia;
"A letter was received from the Ministry of Communications (P&T Board) for exclusion of the extra departmental employees, numbering about 3 lakhs, from the purview of our inquiry. It was stated that the system of Extra Departmental Agents was peculiar tothe P&T organization and was designed to extend postal facilities in rural and backward areas where opening of regular departmental post offices was not justified due to inadequate workload. The remuneration and the conditions of service of Extra Departmental Agents were also different from those of regular Government employees. The Third Pay Commission accepted the view that the extra departmental agents were not holders of civil posts and decided to exclude them from its purview.
The matter is, however, beyond controversy after the decision of the Supreme Court in Gokulananda Das's case where it has been declared that an Extra Departmental Agent is not a casual worker, but 'holds a post under the administrative control of the State' and that while such a post is outside the regular civil services, there is no doubt that it is a post under the 'State'. In view of this pronouncement, we were unable to accept the contention that extra departmental employees were outside the purview of the terms of our Commission. They have no doubt, their own peculiar conditions of service and, in that sense, their case is somewhat special. We, therefore, could not exclude them from our consideration, but we accepted the Government's suggestion for the setting up of a one-man committee to look in to their conditions of service as was done by the Second and Third Pay commissions.”
38:2;4 From the above observation, it is crystal clear that the Fourth Pay Commission was in the conclusion that the ED Agents are civil servants, even though they are kept outside the regular civil service and therefore they were included within the purview of the said Pay Commission. The above observation postulates that though the ED Agents are ‘outside the regular civil service’, yet they are civil servants and, therefore, were included within the purview of the commission. As per the law of the land laid by the Supreme Court, the ED Agents are civil servants as defined under Article 311 (1) of the Constitutions. Necessarily, therefore, they come within the purview of Article 309 as well. The Govt as a model employer, shall not create class within the class of the term of
Central Govt employees after the clear
verdict of the Supreme Court that the GDS are holders of civil post.
38:2:5 The Savoor Committee appointed at the time of the Fourth Pay Commission in its report under
Para 11.4 also observed inter alia:
“The Supreme Court judgment in Civil Appeal No. 1313 of 1976 enunciated the principle that ED agents are holders of civil posts, but outside the regular civil service. The specific issue before the court at the time (Civil Appeal No. 1313 of 1976) was the validity of the orders of the appropriate authority of removal and dismissal of certain Branch Post Masters. Consequently the ED agents, being holders of civil posts would be entitled to the benefit of security of service conferred on Government Servants by the provision of Article 311 of the Constitution.”
38:2:6 The Central Civil Service (Classification, Control & Appeal) Rules 1965 are rules made under Article 309 of the Constitution of India and govern all persons who are members of any service or who hold a civil post under the Union of India. Rule 2 (A) of the said Rules defines the term “Government Servant” as a person who is a member of a service or holds a civil post under the
Accordingly the Govt should have brought the GDS under the CCS (CCA) Rules 1965
but applied the provisions only for removal and dismissal of ED agents then.
38:2:7 The Govt. of India appointed a committee headed by Sri Charanjit Talwar, Retired High Court Judge, Delhi to consider the service condition of the Extra Departmental employees in the year 1996 after the formation of the Fifth Central Pay Commission for the regular departmental officials. After a detailed study with regard to the system and its present existence, the Committee has recommended to treat them at par with regular civil servants by according them the civil status.
38:2:8 The observations of the Justice Talwar in his report on this subject are most appropriate. The following are few of his recommendations in this issue.
"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 cannot be classified as a class apart from the civil servants. At any rate they cannot be classified with the sole object of not granting them benefits which accrue to a departmental employee."
"The plea taken by the Department before the Second and Third Pay Commission 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."
38:2:9 Justice Talwar Committee in its recommendations in the concluding observations held that “they have been held by the
to be civil servants. Therefore, these employees are required in future to be
included within purview of the Pay Commission.” Further, it asserted as
“It is, therefore, recommended that whenever it is required to review the service conditions and wage structure of the employees of the Department of Posts, ED Agents be bracketed along with the departmental employees. There is no need to set up a separate committee or commission for the extra departmental agents.”
38:2:10 Even though the Justice Talwar Committee had recommended that there will be no more separate committee for the GDS as well as the existence of earlier recommendations of the Fourth Pay Commission for inclusion of GDS issues into Pay Commission duly declaring them as holders of civil posts, the Govt did not include the GDS into the terms of reference of the Sixth Central Pay Commission. The Postal Joint Council of Action (PJCA) issued indefinite strike notice demanding the remittance of GDS into Sixth Pay Commission or appoint another judicial committee as if appointed at the time of Fifth Pay Commission headed with the former Judge of Delhi Justice Charanjit Talwar as 90% of his recommendations were simply rejected particularly in not grant of civil status to the GDS. The indefinite strike was deferred after reaching an agreement which is furnished inter alia:
“Appointment of Judicial Committee/ Commission for GDS and grant status and pension to GDS employees”
Staff Side was apprised that in view of the special status of GDS, they were out of the purview of JCM scheme which also takes them beyond the scope of 6th Central Pay Commission. However, the Staff Side insisted on another attempt to be made for consideration of GDS issues by the 6th CPC set up for
employees. The request of the Staff side that the matter may be referred to 6th
Pay Commission by the department has been considered. The Department will make
the request to the Government that 6th Central
Pay Commission may look into GDS also.
38:2:11 The Department unilaterally constituted a committee headed by Sri. R. S.
NatarajaMurthy, a retired officer of the Department despite strong resentment and objections raised by the staff side of the Department of Posts. The said committee has endevoured to set aside all the positive recommendations of the earlier justice committee and justify the exploitation of the GDS by declaring them not the holder of civil post and cannot claim any service conditions at par with regular Government servants.
38:3 PLEADINGS BY THE STAFF SIDE JCM NATIONAL COUNCIL
38:3:1 As we had the bitter experiments last time, the Staff Side of the Postal Department insisted the Staff Side, National Council JCM to include in the terms of reference for the Pay Commission about the consideration of GDS to be remitted to the Seventh Pay Commission and the Staff Side has included this item in the staff side proposal as one of the terms of reference for the ensuing Seventh Pay Commission.
38:3:2 During the Sixth Pay Commission, the Government has set aside our request as the GDS are not under the purview of the JCM Scheme. Now the Govt during the informal discussion held with the staff side on finalisation of agenda items for the next JCM National Council has accepted the request of the Staff Side of the JCM National Council and agreed to discuss the GDS demands in the ensuing National Council JCM.
38:3:3 In the meantime, the National Federation of postal employees conducted two days strike on 12 &13th Feb 2014 demanding to remit the GDS issues to the Seventh Pay Commission. The Postal department based on the demand has referred the case to DOPT to clarify the 4th Central Pay Commission’s observation in para 1.10 that the expression of Central Govt employees has not been defined based on which a final view over the inclusion of Gramin Dak Sevaks within the purview of 7th CPC becomes possible. The Department has communicated to National Federation of Postal Employees that our demand for inclusion of GDS in the 7th Central Pay Commission has been referred to DOP&T for a decision in the matter.
38:4 We Pray
38:4:1 Under these circumstances, we are submitting that the issues of the GDS may please be considered by the Seventh Pay Commission itself and render justice to this poor plighted category as if Justice Talwar Concluded his report with the observation that “the weak and Down trodden need protection.
38:4:2 Detailed memorandum regarding the revision of wages and service conditions of the Gramin Dak Sewaks will be submitted by the GDS unions of NFPE & FNPO