IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINTH DAY OF APRIL, TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 31337 of 1997 Between: 1 Komanduri Seshavataram, (died) per LR S/o. K.Ragachari, R/o.9-4-84/3, Kakatiyanagar, Hyderabad. 2 K. Nancharamma W/o. late Seshavataram R/o.9-4-84/3, Kakatiyanagar, Hyderabad. (Petitioner No.2 brought on record as LR of deceased Petitioner as per C.O. dt.23-4-2007 in WPMP 10331 of 2007) ..... PETITIONERS AND 1 The Zonal Manager, LIC of India, South Central Zone Office, Jeevan Bhagya, Saifabad, Hyderabad-500 004. 2 The Executive Director (Personnel), LIC of India ,Central Office, Yogakshema, Jeevanbima Marg, Munbai-400 021. 3 The Life Insurance Corporation of India rep. by the Chairman, Central Office, Yogakshema Jeevan Bheema Marg, Mumbai-400 021. 4 Union of India rep. by the Secretary to the Government Ministry of Finance Department of Financial Services North Block, New Delhi. (Respondent Nos.3 and 4 are impleaded as per C.O. dt.09.04.2008 in WPMP.Nos.20275/07 and 29572 of 2007 respectively) .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ, order or direction, one more particularly a Writ of Mandamus directing the respondents to add 5 years to my qualifying service and extend the benefit under Rule 27 of the LIC of India (Employees) pension Rules, 1995 and consequently to pay me the benefits that become due on account of revision after adding 5 years to my qualifying service , and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioners:MR.SIVA Counsel for the Respondents : 1. MR.M.V.SURESH, S.C. FOR L.I.C. 2.MR.A.RAJASEKHAR REDDY (ADDL. SOLICITOR GENERAL) The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.31337 of 1997 ORDER: The 1st petitioner, an erstwhile Regional Manager of the Life Insurance Corporation of India, filed the present writ petition seeking a Mandamus to the respondents to add five years to his qualifying service and to extend him the benefit under Rule 27 of the Life Insurance Corporation of India (Employees) Pension Rules, 1995 and consequently to pay him the benefit, that becomes due on account of revision, after adding five years to his qualifying service. During the pendency of the writ petition, the 1st petitioner died and his legal representative-his widow has come on record as the 2nd petitioner. Facts, in brief, are that the 1st petitioner was recruited by the Life Insurance Corporation of India on 01.01.1971 at the age of 34 years as an Assistant Administrative Officer in view of his professional qualification of an Associate of the Institute of Actuaries, London, having qualified as such in the year 1970. It is his case that he was appointed purely on the basis of his professional qualifications of being an Associate of the Institute of Actuaries, London, else, he would not have been appointed as the maximum age limit for appointment to the post of Assistant Administrative Officer, in the Life Insurance Corporation of India, was 28 years. While the notification, issued inviting applications from eligible candidates for appointment as Assistant Administrative Officers, when the 1st petitioner was appointed on 01.01.1971, has not been placed on record, Sri Shiva, learned counsel for petitioners, has made available a copy of the notification issued a couple of years thereafter on 30.04.1974 whereunder the qualification prescribed for appointment as an Assistant Administrative Officer is that the candidate must at least be an Associate of the Institute of Actuaries or must have passed seven subjects of the examinations of the Institute of Actuaries and the age limit prescribed is that the applicants’ age at the time of appointment to the service of the Corporation should not be less than 18 or more than 30 years, that while the limit on upper age was relaxable, there would be no age limit in respect of existing employees. Learned counsel would also rely on a subsequent notification issued on 14.08.1995 wherein also the age limit prescribed is 30 years relaxable by five years for SCs & STs and three years for OBCs. Based on these notifications, it is contended that, since the 1st petitioner was aged 34 years at the time of his initial appointment as an Assistant Administrative Officer, his being appointed to the said post was only in view of his professional qualifications and on relaxation in the upper age limit being extended in his favour. In exercise of the powers conferred by Section 48 of the Life Insurance Corporation Act, 1956 (hereafter referred to as “the Act”), the Government of India made the Life Insurance Corporation of India (Employees) Pension Rules, 1995 (hereafter referred to as “the Pension Rules”). Rule 27 of the Pension Rules reads as under:- “Addition to qualifying service in special circumstances – An employee shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one-fourth of the length of his service or the actual period by which his age at the time of Recruitment exceeded 28 years, or a period of 5 years, whichever is less, if the service or post to which the employee is appointed is one – (a) for which post graduate research or specialist qualifications or experience in scientific, technological or professional fields is essential: and (b) to which candidates of more than twenty eight years of age are normally recruited: and (c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the corporation on account of his possessing higher qualifications or experience: Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits the service in the corporation is not less than ten years: Provided further that this concession shall be admissible only if the recruitment rules in respect of the said service or post contain a specific provision that the service or post is one which carries the benefit of this rule.” It is evident from Rule 27 of the Pension Rules that, under certain special circumstances, certain period of service is added to the qualifying service for the purposes of pension. The addition permissible is the lowest of (a) the actual period not exceeding 1/4th of the length of the service (b) actual period by which the employee’s age at the time of recruitment exceeded 28 years, or a period of five years. The addition to the qualifying service is subject to the fulfillment of the conditions prescribed under Rule 27 of the Pension Rules, i.e., the service or post to which the employee is appointed must be - (a) for which post graduate research or specialist qualifications or experience in scientific, technological or professional fields is essential; (b) to which candidates of more than twenty eight years of age are normally recruited; and (c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the corporation. It is the case of the 1st petitioner that he fulfills all these three requirements in as much as he has a post graduate qualification in a professional field i.e., an Associate of the Institute of Actuaries, London, and that, though a notification was issued calling for applications prescribing 30 years as the upper age limit, the fact that the petitioner, though aged 34 years at the time of initial appointment, was appointed as an Assistant Administrative Officer itself showed that he was given age relaxation over and above the maximum age limit fixed by the Corporation. The 1st petitioner’s claim is that he would be entitled for a certain period of service being added to the qualifying service for the purposes of pension, since he fulfilled all these three requirements and, since the lowest of the three contingencies prescribed under Rule 27 of the Pension Rules is five years, he was entitled to have five years of service added to his qualifying service for the purposes of pension. Sri M.V.Suresh, learned Standing Counsel for the respondent- Corporation, on the other hand, would place reliance on the 2nd proviso to Rule 27 of the Pension Rules whereunder the concession prescribed under Rule 27 is admissible only if the recruitment rules, in respect of the said service or post, contain a specific provision that the service or post is one which carries the benefit of this rule. It is not in dispute that there are no recruitment rules in existence for appointment to the post of Assistant Administrative Officers in the Life Insurance Corporation of India and, since there are no recruitment rules governing appointment to the post of Assistant Administrative Officers, the benefit under Rule 27 of the Pension Rules would not enure to the benefit of employees appointed to the post of Assistant Administrative Officers even if they fulfill all the conditions stipulated in Rule 27 of the Pension Rules in as much as the 2nd proviso to Rule 27 of the Pension Rules specifically limits extension of the concession only where the recruitment rules, in respect of the said service or post, contain a specific provision that the service or post is one which carries the benefit of this rule. Sri Shiva, learned counsel for the petitioners, would contend, placing reliance on Section 49 of the Act, that the power to make regulations governing the terms and conditions of service of employees, including their initial recruitment, lies with the Corporation and that the Corporation cannot deny the benefit conferred on the employees of the Corporation, by the Central Government by way of Pension Rules, in failing to exercise its powers under Section 49 of the Act in making the necessary rules in this regard. Sri M.V.Suresh, learned Standing Counsel for the respondent- Corporation, on the other hand, would contend that Section 49 of the Act has no application and that the regulation making power of the Corporation does not extend to prescribing terms and conditions of service of its employees which power is exclusively conferred on the Central Government under Section 48 of the Act. Section 48 of the Act is the power to make rules and, under sub-section (1) thereof, the Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of the Act. Under sub-section (2) (cc), the rules may provide for the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under the Act. Section 49 of the Act, on the other hand, is a power to make regulations and, under sub-section (1) thereof, the Corporation may, with the previous approval of the Central Government, by notification in the Gazette of India, make regulations, not inconsistent with the Act and the rules made thereunder, to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the Act. Sub-section (2) of Section 49 of the Act enumerates various matters for which the regulations may provide for. On being asked as under which of the sub-clauses of Section 49(2) of the Act can the recruitment rules be made, Sri Shiva, learned counsel for petitioners, would contend that sub-section (2) only specifies what the generality of the power sub-section (1) confers and that sub- section (1) of Section 49 of the Act is wide enough to include the power to make regulations prescribing conditions for recruitment of Assistant Administrative Officers. I am afraid I cannot agree. Since the power to make rules providing for the terms and conditions of service of employees of the Corporation is specifically conferred on the Central Government under Section 48 (2) (cc) of the Act, it is obvious that such a power cannot also have been conferred on the Corporation under Section 49 of the Act. It is only matters that do not fall under Section 48 of the Act which the Corporation may make regulations for, under Section 49 of the Act. Sri Shiva, learned counsel for petitioners, would contend that even if it were to be held that the Central Government has the power to make the rules providing for the terms and conditions of the service of employees, the Government cannot, on the one hand, extend the benefit of addition to the qualifying service for the purpose of pension and, on the other, nullify the very statutory provision by refusing to stipulate such a condition in the recruitment rules. While the concern expressed by Sri Shiva, learned counsel for petitioners, cannot be said to be without justification, it is well to remember that this Court would not, ordinarily, issue a Mandamus to the Central Government to make rules. All that can be said is that the beneficial provision under Rule 27 of the Pension Rules, which confers an additional amount as pension to retired employees of the Corporation, should not be permitted to become redundant and the Central Government would do well to examine the need for taking the necessary steps for giving full effect to the beneficial provision under Rule 27 of the Pension Rules. We need say no more. The relief sought for in the writ petition cannot be granted in the absence of any rule having been made by the Central Government as required under 2nd proviso to Rule 27 of the Pension Rules. The writ petition fails and is, accordingly, dismissed. No costs. ______________________ RAMESH RANGANATHAN,J 9th April, 2008. v v