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(iii) Rule 88 of the CCS (Pension) Rules, 1972 empowers the concerned ministry or the department to relax the operation of any Rule to prevent undue hardship in a particular case.

(iv) The Hon‟ble Apex Court by taking into consideration the fact that many of the employees are missing pension on account of marginal shortfall in the regular service tenure (i.e., 10 years of qualifying service to become eligible for grant of pension) and lack of any power or jurisdiction to fill up the short fall but taking sympathetic view and as per the provision of Rule 88 of CCS (Pension) Rules 1972 finally directed the official respondents that in respect of the GDS, who have not been issued any order for pension, the concerned ministry may consider as to whether the minimum qualifying service Rule can be relaxed in their cases in terms of Rule 88 of the 1972 Rules.

Provided that no such order shall be made except with the concurrence of the Department of Pension & Pensioner's Welfare."

Exercise of power under the said Rules however comes within the decisionmaking domain of the executive. The appellants' case has been that if such power to relax is exercised in each case of marginal shortfall in qualifying service, that would constitute an endless exercise.

[19] 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 Extra-Departmental Agents cannot be factored in for computing their qualifying services in regular posts under the postal department on the question of grant of pension. But we also find many of the respondents are missing pension on account of marginal shortfall in their regular service tenure. This should deserve sympathetic consideration for grant of pension. But we cannot trace our power or jurisdiction to any legal principle which could permit us to fill up the shortfall by importing into their service tenure, the period of work they rendered as GDS or its variants. At the same time, we also find that in the case of Union of India &Ors. v. The Registrar &Anr. (supra), though the incumbent therein (being respondent no.2) had completed nine years and two months of service, the Union of India had passed orders granting him regular pension. This Court in the order passed on 24th November 2015 had protected his pension though the appeal of Union of India was allowed.

(iii) However, the Hon‟ble Apex Court by taking into consideration the sympathetic view only in the case of regularly appointed GDS /Assistant Postman and who retired as regular Group - 'D' employee without any order of pension that too by missing marginal shortfall of rendering 10 years of regular qualifying service, it has been held that the concerned Ministry / Postal Department may consider as to whether the Minimum Qualifying Service can be relaxed in such cases in terms of Rule 88 of the 1972.