IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY FRIDAY, THE NINETEENTH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY WRIT PETITION No.20462 of 1999 Between: P.Niranjan Rao. … Petitioner And: The Transmission Corporation of Andhra Pradesh, Reptd., by its Secretary, Vidyut Soudha, Khairtabad, Hyderabad and three others. … Respondents Counsel for the petitioner: Sri G.Vidya Sagar. Counsel for the respondents: Sri P.R.Balarami Reddy for R.1 to R.3. Sri R.N.Reddy for R.4. This Court made the following: ORDER:- This Writ Petition is filed for a Writ of Mandamus to declare the action of the respondents in not paying the pensionary benefits to the petitioner by duly taking into account the period from July, 1965 to October, 1978 for the purpose of pensionary benefits, as illegal and arbitrary. The petitioner also sought for a consequential direction to the respondents to pay the pensionary benefits with effect from November, 1998 duly taking the above mentioned period into consideration. Heard Sri G.Vidya Sagar, learned counsel for the petitioner; Sri P.R.Balarami Reddy, learned Standing Counsel for respondents 1 to 3; and Sri R.N.Reddy, learned Standing Counsel for respondent No.4. The admitted facts are that the petitioner joined the erstwhile A.P. State Electricity Board (for short “APSEB”) on 3-7-1965 in Operation and Maintenance (O & M) establishment. After working in the said establishment upto 3-10-1978, the petitioner was promoted as Supervisor and thereby he was taken into service of the APSEB, which covered the pension scheme. According to the petitioner, after he became the member of the Board’s service, he withdrew his share of EPF contribution made during his service in O & M establishment as EPF scheme ceased to exist with his absorption into Board’s service. The APSEB issued memo No.O&M/(IR)/10- 3.1/79/81 dated 30-5-1988 to the effect that the service rendered under O & M and Construction Establishments by the employees, who are promoted to pensionable posts prior to 1-4-1982 and are in service in A.P.S.E.B as on 1-4-1982 should be counted for the purpose of calculation of terminal benefits under the A.P.Revised Pension Rules, 1980 subject to the condition that there is no interruption in service under O & M /Construction Service and the service rendered under pensionable establishment. The petitioner averred that there was no interruption in his service and as such his service rendered in O & M establishment is liable to be considered in accordance with the said memo dated 30-5-1988 for the purpose of granting pensionary benefits to him. In the counter-affidavit filed on behalf of respondents 1 to 3 the facts pleaded by the petitioner have not been denied. It is, however, averred that since, according to the petitioner’s own statement, he has already withdrawn the amount from the EPF contribution, his service rendered in the O & M establishment cannot be reckoned for the purpose of calculation of pension. In the counter-affidavit filed by the Assistant Provident Fund Commissioner (Legal), on behalf of respondent No.4, it is stated that the erstwhile APSEB was the establishment covered by the EPF scheme and later the same was excluded from the provisions of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 and that the amounts of the members, including that of the petitioner, were transferred to the APSEB by respondent No.4 vide letter No.AP/1176/APSEB/TR/26, dated 16-1-1992. It is further averred that, in view of the said fact, the APSEB alone has to entertain and settle the claim of the petitioner. The stand of respondents 1 to 3 that the petitioner is not entitled for reckoning the period of his O & M service for computing the pensionary benefits is based on the premise that the petitioner had withdrawn the EPF amount. This, in my view, is wholly erroneous because what is averred by the petitioner in his affidavit is that he has withdrawn his part of contribution and not the employer’s contribution. Even according to the stand taken by respondents 1 to 3 in their counter- affidavit, the service of the employees in the O & M establishment will be reckoned for pensionary benefits under memo dated 30-5-1988 subject to two conditions, viz., that there should not be any interruption in the service of the employee and the employee shall refund the employer’s share of EPF together with interest upto the date of retirement if drawn by them. In the instant case, as could be seen from the counter-affidavit filed by respondent No.4, the petitioner has not drawn the employer’s contribution. On the other hand, they are categorical in their stand that all the employer’s contribution along with interest pertaining to O & M employees, including the petitioner, was sent to the APSEB. In this view of the matter, the stand taken by respondents 1 to 3 cannot be legally sustained. For the above-mentioned reasons, the Writ Petition is allowed. Respondents 1 to 3 are directed to take into account the O&M service rendered by the petitioner from July, 1965 to October, 1978 for the purpose of computation of pensionary benefits. ------------------------------------ C.V.NAGARJUNA REDDY,J Date:19-12-2008 MNR