IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD Writ Petition No.21537 of 2000 BETWEEN: G.Ram Reddy, S/o. G.Veera Reddy, Aged about 60 years, Retired Assistant Engineer (R&B), Bandameedipally Village, Jadcherla Mandal, Mahbubnagar District …Petitioner AND The Government of Andhra Pradesh Rep by its Secretary, Transport, Roads and Buildings Department, Secretariat, Hyderabad 500 022. And others. …Respondents THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD Writ Petition No.21537 of 2000 ORDER (Per the Hon’ble Sri Justice G.BHAVANI PRASAD) The dismissal of O.A.No.4538 of 1999 by order dated 31.08.2000 by the Andhra Pradesh Administrative Tribunal, Hyderabad, led the unsuccessful applicant to file the present writ petition. The writ petitioner was appointed as Overseer on 11.07.1966 and worked as Overseer and then as Assistant Engineer up to 28.08.1986. Thereafter, he did not attend duties due to ill health and had he continued to discharge his duties, he would have retired on attaining the age of superannuation on 31.01.1998. He made a representation to the Executive Engineer on 09.02.1998 requesting to treat the period of absence from 29.08.1986 till 31.01.1998 as extraordinary leave and grant him pension and other retiral benefits. As there was no response, he also issued a legal notice and he was informed that the period of unauthorised absence was treated as dies non for all purposes and therefore, he was not eligible either for pension or for any retiral benefits, as he was ineligible to seek any voluntary retirement without completing 20 years of service. Then, the writ petitioner filed the Original Application before the Tribunal to set aside the proceedings of Engineer-in-Chief rejecting his request and to direct the respondents therein to pay pension, gratuity and other benefits. The official respondents contested the same on the ground that his absence from duty without applying for any kind of leave can be treated only as dies non and that his representation after 11½ years of his absence could not be considered, as he did not complete 20 years of qualifying service to get any pension or other benefits. The service rendered for 17 years 10 months was of no avail in this regard and hence, this request too was negatived by the respondents. The Tribunal in the impugned order noted the facts, which are not in dispute and observed that under fundamental rule 18, the period of absence has to be treated only as dies non and no action under Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1964 was required for treating the said period as dies non. The Tribunal also observed that this period could not have been treated as extraordinary leave without the production of any medical certificate and it concluded that as the service of the writ petitioner was less than 20 years, he was also not qualified for seeking any voluntary retirement. The Tribunal further concluded that the claim of the writ petitioner was barred by limitation with reference to the provisions of the Administrative Tribunals Act, 1985, more particularly, Section 21 and consequently dismissed the application. The writ petitioner challenges the said order herein on the same ground on which he sought for relief before the Tribunal. During the pendency of the writ petition, the writ petitioner filed W.P.M.P.No.19163 of 2002 to permit him to amend the prayer in the writ petition requesting to grant proportionate pensionary and other retiral benefits for the service of 17 years 10 months rendered by him treating him as having retired with effect from 29.08.1986. The learned counsel for both sides are heard. The factual matrix is not in dispute. The service rendered by the writ petitioner as Overseer and Assistant Engineer for a period of 17 years 10 months is not in dispute nor is it in dispute that he was unauthorisedly absent from 29.08.1986 even till 31.01.1998, when he would have retired on attaining the age of superannuation. There was no attempt by the writ petitioner till his application on 09.02.1998 to have the period of unauthorised absence regularised in any manner apart from any period beyond 5 years not possibly open to be treated as extraordinary leave under the Rules. The Tribunal cannot be considered to have gone wrong, if it held that the benefit of voluntary retirement was not available to the writ petitioner under such circumstances and that the claim of the writ petitioner was also barred by limitation. However, it is seen from the material on record that the writ petitioner never made any request earlier and the official respondents never considered earlier whether the writ petitioner should be given proportionate benefits for the actual period of service rendered by him concerning the pension and other retiral benefits. It will be but in tune with the principles of justice, equity and good conscience that when the writ petitioner had admittedly completed the minimum qualifying service of 10 years for becoming eligible to claim pension and other retiral benefits, he should be considered to be awarded such benefits in proportion to the period of service rendered by him. As the question was not considered earlier, the writ petitioner can be given liberty to approach the official respondents with a representation for such purpose. Hence, the relief claimed by him by way of amendment sought for in W.P.M.P.No.19163 of 2002, has to be considered by the respondents in accordance with law within a reasonable period. Accordingly, while the writ petition is dismissed without costs, the writ petitioner is at liberty to make a representation to the official respondents seeking proportionate benefits of pension, gratuity and other retiral benefits in proportion to service of 17 years 10 months rendered by him and the official respondents shall consider and pass appropriate orders on such representation, as expeditiously as possible, in accordance with law, at any rate not later than six (06) months from the date of receipt of such representation. _________________ (B. PRAKASH RAO, J) ___________________ (G. BHAVANI PRASAD, J) October 28, 2009 BVV / CVRK