HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 27140 of 1997 Between: Dr. P. Kamaiah. ..... PETITIONERS AND Tirumala Tirupathi Devasthanam, Tirupathi, rep. By its Executive Officer & others. .....RESPONDENT(S) HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 27140 of 1997 ORDER: Petitioner, a retired librarian of Sri Krishnadevaraya University, Ananthapur, questions the action of the Tirumala Tirupathi Devasthanam (TTD) in not releasing and disbursing the pro-rata pensionary benefits and gratuity in terms of G.O.Ms.No. 39, Finance and Planning (Fin.Wing.Pen.I) Department, dated 01.02.1980, as arbitrary, illegal, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. He seeks a consequential direction to the respondents to forthwith process and sanction pro-rate pensionary benefits and gratuity in terms of G.O.Ms.No. 39, dated 01.02.1980, including all arrears. Facts, in brief, are that the petitioner was initially appointed as librarian in Sri S.V. Oriental College, Tirupathi, on 11.04.1967; his services were confirmed in the said college with effect from 10.04.1969; he continued to work thereat till 03.03.1979; and was appointed as Assistant Librarian in Sri Krishnadevaraya University with effect from 05.03.1979. The TTD had granted him lien for a period of two years, which was extended by a further period of one year, before which the petitioner was absorbed in the services of the Sri Krishnadevaraya University; he was promoted to the post of Deputy Librarian on 05.07.1985 and was confirmed in the said post later; and he was later appointed as professor in Library and Information Science on 10.09.1993 and retired with effect from 30.06.2000. The petitioner claims, in this writ petition, for grant of prorate pension for the services rendered by him in the TTD from 11.04.1967 till 03.03.1979. Sri A. Venkata Ramana, learned counsel for the petitioner, would contend that in terms of G.O.Ms.No. 39, dated 01.02.1980, the petitioner was entitled for pro-rate pensionary benefits; the TTD had accrued pro-rata pensionary benefits to Sri T.K. Gopalaswamy Ayyangar, Ex.lecturer in Sanskrit in Sri Venkateswara Arts College, Tirupathi by G.O.Rt.No. 765, dated 12.04.1979; Sri A. Doraswamy Naidu, Sri Sripathi Raghavaiah, Dr. G.Sivasankara Rao and Sri Sarvepalli Rama Rao by G.O.Ms.No.1454, dated 24.09.1984 and Sri K. Venkata Reddy, Ex.Lecturer in Economics by G.O.Ms.No. 886, dated 25.07.1986. Learned counsel would also point out that the TTD had informed the petitioner that his gratuity and pro-rata pensionary benefits would not be settled till he repaid double the cost of the missing library books of Rs.7,982.12 ps. A counter affidavit has been filed on behalf of the TTD, from which it is evident that the TTD had adopted the Andhra Pradesh Revised Pension Rules, 1980 (for short ‘the Rules’). Rule 26 of the said Rules reads as under: 26. Forfeiture of service on resignation: 1. Resignation from a service or post entails forfeiture of past service: Provided that a resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. 2. Interruption in service in a case falling under the proviso to sub-rule (1), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him. Note:1:- Under proviso of Rule 26, resignation of an appointment to take up with proper permission another appointment whether permanent or temporary service which counts in full or in part is not resignation from public service. A question has been raised whether in such cases a separate sanction should be issued indicating that resignation has been accepted under the above provisions. In order to enable the audit/administration officer to regulate the consequential benefits in the matter of pay fixation, carry forward of leave, pension etc., in cases of the above type the order accepting the resignation should clearly indicate that the employee is resigning to join another appointment with proper permission and that the benefits under proviso to Rule 26 will be admissible to him. The contents of such order should also be noted in the service book of the individual concerned under proper attestation. No separate order sanctioning these benefits in such case each time would be necessary. Note:2:- A member of a service or services who is selected for appointment by direct recruitment to another post, category or class in the same or different service and is appointed to it, shall, as soon as he is appointed to the post, category or class for which he has been selected by direct recruitment be deemed to have resigned from the service or services of which he is a member prior to his appointment as aforesaid. Provided that nothing in this ruling shall effect the benefits accrued to such member of a service or services in the previous post or posts, except the lien or probationary right, as the case may be, on such post or posts. The mere fact that the petitioner had submitted his application for being appointed as librarian in Sri Krishnadevaraya University through TTD and was granted lien would not mean that the TTD had permitted to claim appointment, whether temporary or permanent, in Sri Krishnadevaraya University. The effect of the lien, granted by the TTD, is merely for the petitioner to come back and join his original post in the TTD during the period of lien, if he so chose to do so. Grant of lien cannot be construed as the permission given by the TTD to the petitioner for being appointed as librarian in Sri Krishnadevaraya University. Sri A. Venkata Ramana, learned counsel for the petitioner, would, however, draw the attention of this Court to proviso to Note-2 of Rule 26 of the Rules in support of his contention that the benefits, which accrued to a member of a service or services in the previous post or posts, shall not be effected by Rule 26. On a reading of Note-2, it is evident that the petitioner, on his appointment as Assistant Librarian in Sri Krishnadevaraya University by direct recruitment, is deemed to have resigned from the services of the TTD. Under Rule 26(1) of the Rules, resignation from a service or post entails forfeiture of past service. Proviso to Note-2 merely protects the benefits, which accrue to a member of a service in the previous post held by him. Sri A. Venkata Ramana, learned counsel for the petitioner, would fairly state that it is only on completion of 20 years of service, an employee of the TTD is entitled for grant of pension. What the proviso to Note-2 protects are the benefits, which would have accrued to an employee of the TTD, prior to his leaving the service of the TTD. For instance, if an employee has put in more than 20 years of service in TTD prior to his leaving of service and joined in another organization, he would have been entitled to the benefits of pension. Since the petitioner, admittedly, did not render the period of service required for grant of pension, the proviso is of little assistance and he cannot claim that he should be given the benefits of pro-rata pension, to be included for the purpose of grant of pension, on his retirement from Sri Krishnadevaraya University. Since the TTD had adopted the A.P. Revised Pension Rules, the petitioner is disabled under Rule 26 of the Rules for grant of pension. Reliance placed on G.O.Ms.No. 39, dated 01.02.1980, is also of no avail. The said G.O. applies to cases where government servants are absorbed in Public Undertakings or State Aided Autonomus Bodies or Corporations. TTD is not one such. It is a statutory body under Act 30 of 1987 and cannot be construed as a public undertaking. It is not even the petitioner’s case that the State provides financial aid to the TTD. Inasmuch as G.O.Ms.No. 39, dated 01.02.1980, does not apply to the TTD, no reliance can be placed thereupon. Since it is obvious that G.O.Ms.No. 39, dated 01.02.1980, does not apply to TTD, and inasmuch as there is no material to show that the said G.O. had been adopted by the board of TTD, the benefits of the said G.O. cannot be extended to employees of the TTD. Sri A. Venkata Ramana, learned counsel for the petitioner, would contend that the TTD, in its counter affidavit filed before this Court, had not disputed the applicability of the G.O. to its employees. It needs no emphasis that the burden lies heavily on the petitioner who had invoked this Court’s jurisdiction claiming the benefits of pro-rata pension to establish that he is entitled for being extended the benefit under the said G.O. The mere fact that the counter affidavit filed by the TTD is silent in this regard is of little assistance. On the plea of discrimination, it must be noted that it is only if the earlier orders are lawful, would the petitioner be entitled to claim parity. If the earlier orders issued were contrary to the Rules, no benefit can be claimed by the petitioner as it is well settled that no mandamus can be sought for an illegality to be perpetuated. The mere fact that the respondents insisted on the petitioner repaying the cost of the missing books before his pro-rata pension and gratuity were settled does not amount to tacit acceptance on their part, that, in case, he paid the amount, his pro-rata pension and gratuity would be settled. It is not in dispute that the petitioner was required to repay double the cost of the missing books. All that was asked was to repay the said amount before his request for grant of pro-rata pension could be examined. G.O.Rt.No. 765, dated 12.04.1979, makes no mention whether Sri T.K. Gopalaswamy Ayyangar, who was working as Ex.lecturer in Sanskrit in Sri Venkateswara Arts College, Tirupathi, had sought appointment in any other organization. With regards G.O.Ms.No.1454, dated 24.09.1984, it is the specific case of the TTD that these employees were accorded permission to resign from the services of the TTD and join Sri Venkateswara University. The fact, however, remain is that the counter affidavit is silent with regards G.O.Ms.No. 886, dated 25.07.1986, whereby Sri K. Venkata Reddy, who rendered service for more than 19 years and, had joined Sri Krishnadevaraya University was extended the benefit of pro-rata pension and gratuity. In the absence of this aspect being dealt with in the counter affidavit, it is not known as to the facts and circumstances under which Sri K. Venkata Reddy was given the benefit of pro-rata pension. Sri M. Adinarayana Raju, Learned Standing Counsel for the TTD, would contend that, even if Sri K. Venkata Reddy was given the benefit contrary to the rules, that would not confer any right on the petitioner to claim similar benefit since that would amount to perpetuating an illegality. While this submission of the learned standing counsel does merit acceptance, it is not clear as to whether the petitioner’s case is similarly situated to that of Sri K. Venkata Reddy and whether Sri K. Venkata Reddy was extended the said benefit in accordance with the rules in force. In such circumstances, I consider it appropriate to direct the TTD to examine the petitioner’s request for grant of pro-rata pension, in the light of the orders passed in G.O.Ms.No. 886, dated 25.07.1986, whereby Sri K. Venkata Reddy was extended the benefit of pro-rata pension on his leaving the services of TTD and joining Sri Krishnadevaraya University, and in case, the petitioner stands on the same footing as that of Sri K. Venkata Reddy, and extension of benefit to Sri K. Venkata Reddy is in accordance with the rules in force, the TTD shall consider, the extension of the said benefits to the petitioner also, and take a decision and communicate the same to the petitioner, in any event, within a period of three months from the date of receipt of a copy of this order. The Writ Petition is accordingly disposed of. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Date:18.02.2010 usd