JUDGMENT

(Judgment of the Court was made by P.B.BALAJI,J.)

The Employer, namely Union of India represented by its Postmaster General and others are the petitioners before us, aggrieved by the order passed by the Tribunal in O.A. No.1396 of 2013 dated 28.03.2016.

2. The brief facts that are necessary for effective adjudication of the Writ petition are as follows:

The 2nd respondent in this Writ petition, as appellant in O.A.

No.1396/2013, was appointed as GDS MC on 09.04.1975 and thereafter he was transferred as GDSMD/MC in 1977. Subsequently, on retirement of a postman, Mr. S. Appanan at Aruppukottai on 31.07.2002, the 2nd respondent being willing to work as postman on a temporary basis in the vacant post was appointed to the said post. Thereafter, the 2nd respondent continued to work as postman on a temporary basis from 05.10.2002 to 15.08.2005, subsequent to which, he was selected as a postman under seniority quota (of GDS) on 28.07.2005. Pursuant to the same, he was appointed as a regular postman on 28.08.2005. The 2nd respondent claiming that the services rendered by him as a postman between 05.10.2002 and 15.08.2005 ought to be considered and accordingly his pension be decided, approached the Tribunal seeking relief.

3. The petitioners, as respondents before the Tribunal objected to the said claim of the 2nd respondent on the ground that his appointment as a postman on 31.07.2002 was only temporary and also there is a break in the said arrangement once in every 90 days. It was also contended that the 2nd respondent had also agreed that the arrangement was only temporary and based on the same he would not claim any regular appointment in the cadre.

4. The Tribunal allowed the O.A. holding that the 2nd respondent was appointed on officiating basis to the post Postman on 05.10.2002 and applying Rule 13 of the CCS (Pension) Rules, 1972 held that the services rendered by him on temporary basis would also be accounted for the purposes of pension and finally concluded that the 2nd respondent is entitled to be considered under the Old Pension Rules.

5. The petitioners have challenged the said order of the Tribunal on the ground that the appointment of the 2nd respondent as a Postman was only a temporary arrangement and it would not confer any right on the 2nd respondent; Rule 13 of CCS (Pension) Rules 1972 would apply only to the Government servant who was appointed substantively and the same cannot be applied to the 2nd respondent who was not a Government servant; the post of GDS namely Gramin Dak Sevak was unique to the Postal Department and under the said post, the persons who are appointed as GDS were not Government employees and they were governed by a separate set of Rules called Gramin Dak Sevak (Conduct & Engagement) Rules, 2011; the nature of work of a GDS was part time compared to the regular Government service, which has to be for a minimum of 8 hours of service; the order of the Tribunal was contrary to settled legal position and Office Memorandums.

6. We have heard Mr. AR. L. Sundaresan, Additional Solicitor General, assisted by Mr. S. Diwakar, Senior Panel Counsel, learned counsel for the petitioners and Mr. R. Malaichamy, learned counsel for the 2nd respondent. We have also perused the records as well as the order of the Tribunal.

7. Mr. R. Malaichamy, the learned counsel for the 2nd respondent, invited out attention to the additional typeset of papers filed by the 2nd respondent, specifically to the case of one Mr. M. Murugesan, in the correspondence in Memo No.B6/6/2004-05 dated 28.07.2005. Relying on the said communication, the learned counsel for the 2nd respondent would state that the petitioners themselves have stated that the 2nd respondent has been selected for promotion to the cadre of Postman on seniority basis under Annual Direct Recruitment Plan for the years 2003 and 2004 together and therefore it is a clear case that his appointment was prior to 2004 and even the petitioners were not clear as to the actual d