IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 7239 of 1999 Between: Appikonda Suri s/o.Sanyasi, Attender, Andhra Medical College, Pithapuram colony, Visakhapatnam. ..... PETITIONER AND 1. The Principal, Andhra Medical College, Visakhapatnam. 2. District Medical and Health Officer, Visakhapatnam. 3. The Medical Officer, Rural Health Centre, Simhachalam, Visakhapatnam. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction particularly one in the nature of writ of mandamus declaring the inaction on the part of the respondents in taking him back to service with all consequential and attendant benefits or in the alternative to settle all his pensionary benefits treating him as having been retired from service voluntarily and consequently direct the respondents to settle all his pensionary benefits forthwith. Counsel for the Petitioner:DR.P.B.VIJAY KUMAR Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : ORDER: (Per Sri V.Eswaraiah, J.) Heard the learned counsel appearing for the petitioner and the learned Government Pleader for Services II for the respondents. The petitioner was appointed as Peon in the office of the Medical Officer, Rural Health Centre, Simhachalam, Visakhapatnam, the 3rd respondent herein, in the year 1958. It is stated that while he was in service, some time in the year 1977, he got mental shock due to the sudden demise of his wife and son and due to the mental disorder, he could not attend his duties and he applied for leave from 2.6.1980 on medical grounds. As he became mentally ill, he also got issued a registered lawyer’s notice dated 15.1.1991 for payment of arrears of wages and to take him back into service and to continue him up to the age of superannuation. For the said laywer’s notice dated 15.1.1991, the 3rd respondent requested the Deputy Civil Surgeon, Rural Health Centre, Simhachalam, to take necessary action with the regard to the said notice. It is stated that no action has been taken on the said notice and therefore the petitioner filed O.A.No.1967 of 1992 on the file of the A.P.Administrative Tribunal seeking directions for issuing posing orders to him by declaring that the applicant is deemed to be in service with all consequential and attendant benefits including arrears of salary etc., or in the alternative order early settlement of pensionary benefits in view of his long length of service together with interest at 18% per annum from the date of eligibility by treating that the applicant has taken voluntary retirement. The Tribunal after hearing the contentions of both the parties and after perusing counter wherein it was revealed that the petitioner was discharged from service as a deserter with effect from 1.7.1979 A.N. and in fact the petitioner himself applied for H.R.A and he did not ask for the retirement benefits and after a lapse of a decade he got a registered letter and lawyer’s notice issued during 1990 and 1991 respectively and it is the case of the Department that the petitioner was deemed to have been discharged from service as per the orders of the Principal, Andhra Medial College, Visakhapatnam, vide Rc.No.16301/G.2/79, dated 18.1.1980, since he had stayed away from service with effect from 1.7.1979 his request for the settlement of H.R.A from 1971 to 1979 was settled and the petitioner was also informed that he was discharged from the service and thereafter the petitioner himself vide letters dated 10.10.1982 and 4.2.1983 requested for release of arrears due to him and for settlement of family benefit fund and arrears of house allowance. It is further stated that as per the letter dated 4.2.1983 the petitioner stated that he had resigned from service and requested for payment of Family Benefit Fund and arrears of H.R.A due to him and accordingly dismissed the said O.A., permitting the petitioner to make a representation to the concerned authorities. Aggrieved by the same, this writ petition has been filed. It is the case of the petitioner that he has put in 20 years of long service and therefore he is entitled for minimum pension. According to the respondents, he joined duty in the year 1958 and he was deemed to have been discharged from service with effect from 1.7.1979 vide orders dated 18.1.1980. It is the case of the petitioner that the discharge orders were not at all communicated to him and therefore as per the decision of the Apex Court reported in The State of Punjab v. A.S.Harika[1] wherein it was held that the mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. An order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. Thus, it is his contention that the discharge order was not communicated and therefore he had not challenged the said order. We are unable to accept the said contention. As per the counter it is stated that the petitioner was informed that he was discharged from service with effect from 1.7.1979 vide orders dated 18.1.1980 and thereafter he had filed two letters 10.10.1982 and 4.2.1983 for settlement of his family benefit fund and arrears of H.R.A. However, we are not inclined to express any opinion with regard to the said controversy, as admittedly the petitioner has not questioned the discharge order. However, the Tribunal having regard to the facts and circumstances of the case, permitted the petitioner to make a representation to consider his case for payment of gratuity, pensionary benefits for the period of his actual service and, if any representation is filed, it is for the authorities to consider the same. It is stated that the petitioner has not made any representation. It is the case of the petitioner that in view of the discharge orders, the respondents will not consider his representation. We are unable to accept the said contention as it cannot be assumed or presumed that without making any representation, the authorities will not consider the said direction. Having regard to the facts and circumstances of the case, we dispose of the writ petition permitting the petitioner to make a representation within four weeks from today for grant of pensionary benefits for the actual period he was in service and if he has put in minimum service for granting the minimum pensionary benefits, the authorities may consider the same without any reference to the discharge order and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. The writ petition is accordingly disposed of. No order as to costs. _________________ V.ESWARAIAH, J. __________________ P.SWAROOP REDDY, J. 23.6.2009 kpr [1] AIR 1966 SC 1313