1. In this writ petition, the petitioner is seeking a writ of mandamus declaring the action of the respondents No.1 to 5 as illegal, arbitrary and unconstitutional and consequently to direct the respondents to grant Pro-Rata Pension to the petitioner with effect from the date of his discharge from the Indian Air Force i.e., w.e.f. 13.12.2000 onwards and to pass such other order or orders in the interest of justice.

2. Brief facts leading to the filing of the present writ petition are that the petitioner joined in the Indian Air Force (IAF) on 11.08.1989 in the trade of Radio Technician and after completion of 11 years 4 months and 3 days of combatant service in the IAF, the petitioner was promoted to the rank of Corporal in IAF during the month of August, 1994. The petitioner also claims to have served during Kargil War as a Non-Commissioned Officer (NCO).

3. Thereafter, with due permission from the service, the petitioner applied for the post of Assistant Engineer in the APGENCO through proper channel and also obtained No-Objection Certificate from the Air Headquarters, AOP., which was the competent authority to grant NOCs. Thereafter, he was selected to the said post and he joined the said service after discharge from service of the Indian Air Force on 13.12.2000. It is submitted that the petitioner continued to serve with APGENCO and thereafter, after bifurcation of the State of Andhra Pradesh as the States of Andhra Pradesh and Telangana, the petitioner has been allotted to the State of Telangana and the organization has been designated as TSGENCO.

4. On 16.11.2019, the petitioner applied for sanction of pro-rata service pension to the respondents and on 05.02.2020, another representation was submitted. However, the respondents failed to consider the same and the petitioner filed a Writ Petition before this Court.

5. The learned counsel for the petitioner relied upon the decision of the Delhi High Court in the case of Govind Kumar Srivasthava Vs. Union of India and Others, rendered in W.P.(C). 10026 of 2016 and also the decision of the Hon’ble Supreme Court in the SLP(C) No.8813 of 2019, wherein the SLP was rejected in support of his claim of pro-rata pension. It is submitted that the respondents have rejected the case of the petitioner for pro-rata pension on the ground that the petitioner is a Non-Commissioned Officer and the pro-rata pension is available only for Commissioned Officers.

6. The learned counsel for the petitioner submitted that in the case of Govind Kumar Srivasthava (cited supra), the Delhi High Court has considered the above stand of the respondents and has held it to be discriminatory and when the issue was carried in appeal before the Hon’ble Supreme Court by the respondents, the same has also been dismissed and therefore, it is submitted that the petitioner is entitled for pro-rata pension and thus, he prayed for allowing of the writ petition.

7. The learned counsel appearing for the respondents, on the other hand, relied upon the averments made in the counter affidavit and submitted that it is not only that the petitioner was a Non-Commissioned Officer and therefore was not entitled to the pro-rata pension, but that the petitioner has joined State Government service and not the Central Government service and therefore, he is not entitled for pro-rata pension. Further, he has also taken another objection about the maintainability of the writ petition and submitted that the petitioner has to approach the Armed Forces Tribunal for the relief and not this Court under Article 226 of the Constitution of India.

8. Having regard to the rival contentions and the material on record, this Court deems it fit and proper to deal with the preliminary objection first i.e., whether the petitioner has to approach the Armed Forces Tribunal for the above relief. The learned counsel for the petitioner has drawn the attention of this Court to the order of Armed Forces Tribunal dated 31.07.2018, wherein it was held that it cannot entertain the challenge of Circulars before it. It was in these circumstances that the petitioner has approached the High Court under Article 226 of the Constitution of India and this Court does not find any reason to hold otherwise. Further, in this case, the petitioner is seeking grant of pro-rata pension in accordance with the Circular issued by the Government of India and the Delhi High Court in the case of Govind Kumar Srivasthava (cited supra), has considered the Circular to be discriminatory in so far as Non-Commissioned Officers. Therefore, it is clear that the said Circular is applicable to Non-Commissioned Officers as well and the petitioner is entitled to be considered for the same.

9. As regards the contentions of the respondents that the petitioner has not joined a Central Public Enterprise but a State Public Enterprise, this Court finds that the Circular dated 19.02.1987 refers to absorption in Central Public Enterprises. However, in this case, the respondents have given no objection to the petitioner to join the APGENCO, which is a State Government Public Enterprise and the application was sent through proper channel and the petitioner was permitted to retire prematurely from the defence service for the purpose of taking up the appointment in the State Government Enterprise. Therefore, this Court is of the opinion that as long as the Enterprise is a Public Enterprise, whether owned by the State Government or Central Government and the application was routed through the department and no objection certificate has also been given by the department, the respondents ought to entertain the case of the petitioner for pro-rata pension.

10. In view thereof, this Court deems it fit and proper to set aside the impugned order dated 10.12.2019 and direct the respondents to consider the case of the petitioner for grant of pro-rata pension on account of service rendered by him in the Indian Air Force.

11. Accordingly, the writ petition is allowed. There shall be no order as to costs.

12. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.