IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 17112 of 1999 Between: K.Butchaiah, S/o K.Narayudu, R/o 5-3-15, kovur(Achantavari Veedhi) East Godavari District, A.P. ..... PETITIONER AND 1 Regional Provident Fund Commissioner of Andhra Prdesh Barkatpura, Hyderabad- A.P. 2 Vice-Chairman & Managing Director, A.P.State Road Transport Corporation, Musheerabad, Hyderabad-20. (Dismissed for default as per Court order dated 13-03-2003) 3 Depot Manager, A.P.State Road Transport Corporation Rajamundry (A.P.) ..RESPONDENTS Counsel for the Petitioner:MR.A.RAMA SUBBAIAH Counsel for respondent No.1: MR R.N.REDDY Counsel for respondent No.3: MR C.PRAKASH REDDY The Court made the following : O R D E R: This writ petition is filed for a writ of Mandamus to declare the inaction of the respondents in granting pensionary benefits to the petitioner either under the Employees’ Family Pension Scheme, 1971 (for short “the 1971 Scheme”) or under the Employees’ Pension Scheme, 1995 (for short “the 1995 Scheme”) as arbitrary, illegal and unjustified. The petitioner sought for a consequential direction to the respondents to grant appropriate pensionary benefits either under the 1971 Scheme or the 1995 Scheme or under both, with all arrears from 01-03-1995. Heard Sri A.Rama Subbaiah, learned counsel for the petitioner, Sri R.N.Reddy, learned Standing Counsel for respondent No.1, and Sri C.Prakash Reddy, learned Standing Counsel for respondent No.3. The petitioner, who worked as a Conductor in the Andhra Pradesh State Road Transport Corporation (for short “the Corporation”), retired from service on 28-02-1995. His grievance is that the respondents have not been paying him pension either under the 1971 Scheme or the 1995 Scheme. In the counter-affidavit filed by the Assistant Provident Fund, Commissioner (Legal), on behalf of respondent No.1, it is stated that the petitioner has not opted for family pension membership under the 1971 Scheme; that no deductions were made from his salary towards family pension fund during his entire service except during 1983-84, when a sum of Rs.21.50 ps was diverted towards family pension fund by oversight and that, however, it was repaid to the petitioner along with interest. It was, therefore, averred in the counter-affidavit that the petitioner was not eligible for pension. In the counter-affidavit filed on behalf of respondent No.3, a similar plea is taken. While denying the plea of the petitioner that certain amounts were deducted in the years 1983-84 and 1988-89, it is stated that the Secretary, Provident Fund (Trust), Hyderabad, settled the provident fund account of the petitioner at the time of his retirement by paying a sum of Rs.39,754/- under letter dated 20-02-1995. The details of gratuity, provident fund and the other amounts, which were paid to the petitioner on retirement, are also given in the counter- affidavit. At the hearing, the learned counsel for the petitioner submitted that though the petitioner may not have been a member of the 1971 Scheme, the 1995 Scheme, which came into force on 16-11-1995, with effect from 01-04-1993, provides for option being given for coming under pension scheme though the employee was not a member of the Employees’ Family Pension Scheme, 1971. The learned counsel placed reliance on para 6 (c) and (d) of the 1995 Scheme, in support of his contention. The said clauses read as under- “6. Membership of the Employees’ Pension Scheme:- Subject to sub-paragraph (3) of paragraph 1, this Scheme shall apply to every employee,-- (a) ………….. (b) …………… (c) who ceased to be a member of the Employees’ Family Pension Scheme, 1971, between 1st April, 1993 and 15th November, 1995 and opts to exercise his option under paragraph 7. (d) who has been a member of the Employees’ Provident Fund or of Provident Funds of Factories and other establishments exempted by the appropriate Government under Section 17 of the Act or in whose case exemption has been granted under Paragraph 27 or 27A of the Employees’ Provident Funds Scheme, 1952, on 15th November, 1995, but not being a member of the ceased Employees’ Family Pension Scheme, 1971, opts to exercise his option under Paragraph 7.” A careful analysis of the above reproduced two sub-paragraphs reveals that the 1995 Scheme applies to two categories of employees, namely; that those who ceased to be members of the Employees’ Family Pension Scheme, 1971 between 1st April, 1993 and 15th November, 1995 and opt to exercise their option under paragraph 7 and those who have been members of the Employees’ Provident Fund or of Provident Funds of Factories and other establishments exempted by the appropriate Government under Section 17 of the Act etc., but not being members of the ceased Employees’ Family Pension Scheme, 1971 and exercise their option under Paragraph 7. In my considered view, the petitioner does not fall in either of the two sub-paragraphs, because he failed to establish that he was ever a member of the Employees’ Family Pension Scheme, 1971 and that he ceased to be a member under that Scheme between 1st April, 1993 and 15th November, 1995. Therefore, sub-para (c) is not attracted to the case of the petitioner. Under sub-para (d), an option is available to the employees, who are members of the Employees’ Provident Fund or of Provident Funds of Factories and other establishments exempted by the appropriate Government under Section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 or in whose case exemption has been granted under Paragraph 27 or 27A of the Employees’ Provident Funds Scheme, 1952, on 15th November, 1995, but not being a member of the ceased Employees’ Family Pension Scheme, 1971. This sub-para would have been applicable to the petitioner had he been in employment on 15-11-1995. Admittedly, the petitioner retired on 28- 02-1995 and was not an employee as on 15-11-1995. Therefore, he cannot claim the benefit of either of the two sub- paragraphs on which reliance is placed by the learned counsel for the petitioner. For the above mentioned reasons, the writ petition is dismissed. C.V.NAGARJUNA REDDY, J Dated 25th November, 2008 vrn