K.R. Natesan vs Life Insurance Corporation of India and Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939 WP(C).No. 29207 of 2016 (A) ---------------------------- PETITIONER(S): ------------- K.R.NATESAN S/O.V.KOCHUNNI PILLAI, RTD. LIC EMPLOYEE, AGED 83, HOUSE NO.10 (C.R.A.63/10), L.I.C.COLONY, PONGUMOODU, THIRUVANANTHAPURAM-695 011. BY K.R.NATESAN (PARTY IN PERSON) RESPONDENT(S): -------------- 1. LIFE INSURANCE CORPORATION OF INDIA REPRESENTED BY ITS CHAIRMAN, YOGAKSHEMA, JEEVAN BHIMA MARG, PB NO.19953, MUMBAI-400 021. 2. THE UNION OF INDIA REPRESENTED BY THE SECRETARY, FINANCIAL SERVICES, MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES, 3RD FLOOR, JEEVAN DEEP BUILDING, SANSAD MARG, NEW DELHI-110 001. R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV. SRI.HARIDAS P.NAIR, CGC R1 BY ADV. SRI.S.EASWARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.8.2017, THE COURT ON 26-09-2017 DELIVERED THE FOLLOWING: WP(C).No. 29207 of 2016 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE LETTER OF APPOINTMENT DATED 14.3.1958 ISSUED BY THE DIVISIONAL MANAGER, LIC, TRIVANDRUM TO THE PETITIONER. EXHIBIT P2 TRUE COPY OF LETTER OF CONFIRMATION DATED 20.11.1958 ISSUED BY THE ZONAL MANAGER, LIC, TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF LETTER OF PROMOTION DATED 26.10.1965 ISSUED BY THE ZONAL MANAGER, LIC, TO THE PETITIONER. EXHIBIT P4 TRUE COPY OF LETTER OF APPRECIATION DATED 30.1.1976 ISSUED BY THE SR. DIVISIONAL MANAGER, LIC, TO THE PETITIONER. EXHIBIT P5 TRUE COPY OF LETTER UPON RECEIPT OF THE LETTER OF RESIGNATION SENT BY THE SR. DIVISIONAL MANAGER TO THE PETITIONER DATED 28.9.1979. EXHIBIT P6 TRUE COPY OF CERTIFICATE DATED 5.3.1980 ISSUED BY THE SR. DIVISIONAL MANAGER TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF DISCHARGE SUMMARY DATED 21.10.2015 ISSUED BY THE COSMOPOLITAN HOSPITALS (P)LTD. THIRUVANANTHAPURAM TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF LETTER SENT ON BEHALF OF THE PETITIONER TO THE CHAIRMAN LIC, DATED 18.2.2016. EXHIBIT P9 TRUE COPY OF LETTER SENT BY THE PETITIONER TO THE PRIME MINISTER'S OFFICE DATED 8.03.2016. EXHIBIT P10: COPY OF MEDICAL CERTIFICATE DATED 247TH JUNE, 2017 ISSUED BY THE COSMOPOLITAN HOSPITALS TRIVANDRUM. DULY NOTARIZED. EXHIBIT P11: THE POWER OF ATTORNEY IN ORIGINAL OF THE PETITIONER AUTHORIZING THE APPLICANT TO APPEAR AND ARGUE ON HIS BEHALF. DULYH STAMPED AND NOTARIZED. RESPONDENT(S)' EXHIBITS -----------------------: NIL /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J.** ## **----------------------------------------------W.P(C).No. 29207 of 2016** ## **----------------------------------------------Dated this the 26[th] day of September, 2017** ## **JUDGMENT** This writ petition is filed with the following prayers: - “ _i. to declare that the termination of services of the petitioner was in essence voluntary retirement within the ambit of Rule 31 of Life Insurance Corporation of India Pension Rules._ - _ii. to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1[st] and 2[nd] respondents to provide the pensionary benefits under Rule 31 of LIC of India Pension Rules, 1995 to the petitioner, invoking the provisions contained in Section 19(2A)(b) of LIC of India Staff Regulations, 1960._ - _iii. To declare that the Rules 1(2) and 3(1)(a) of the LIC of India Pension Rules, 1995, is arbitrary and in violation of Article 14 of the Constitution of India.”_ 2. Heard the authorised representative of the petitioner who was permitted to represent him and Sri.S.Easwaran, learned Standing Counsel for the 1[st] respondent as well as Sri.N.Nagaresh, learned Assistant Solicitor General of India appearing for the 2[nd] respondent. 2 _**WP(C).29207/16**_ 3. It is contended that the writ petitioner joined service of the 1[st] respondent Corporation in 1959. He resigned from service on 30.2.1979. At that time, there were no pension rules in the Corporation and consequently, no pension was paid to the petitioner. His provident fund dues were released to him. It is submitted that in 1995, the 2[nd] respondent had issued the Life Insurance Corporation of India (Employees) Pension Rules, 1995 (for short, 'the Rules'). The said Rules were given retrospective effect from 1993. The Rules provided that the same would apply to employees, who were in service of the Corporation on or after the 1[st] day of January, 1986 but had retired before the 1[st] day of November, 1993 and who exercised option to become a member of the LIC of India (Employees) Pension Fund within 120 days from the notified date and who refunded the entire amount of LIC's contribution to the provident fund with interest thereon. 4. It is the contention of the petitioner that Rule 31(1) of the Rules provides that at any time after an employee has completed 20 years of qualifying service he may, by giving notice of not less than 90 days, in writing, to the appointing authority, retire from service. It is stated that the Supreme Court in _**Asger Ibrahim Amin v. LIC of India**_ [2013 (138) 3 _**WP(C).29207/16**_ SLR 142] had held that all employees who had completed 20 years of service would be entitled to pension even if the termination of service was on account of resignation. It is further contended that the Apex Court in _**LIC of India v. Krishna Murari Lal Asthana and Others**_ [(2016)6 SCC 515] granted interim relief to all classes of pensioners with regard to the issue of dearness allowance in April, 2016 and the petitioner is also entitled to pension, since there can be no discrimination between pensioners. 5. The contention raised by the petitioner in this writ petition is to the effect that he had admittedly completed 20 years in the service of the LIC as on the date of his resignation. He contends that he would therefore be entitled to pension on account of his long years of service. Relying on the decision of the Apex Court in _**D.R.Nim, I.P.S v. Union of India**_ (1967 AIR 1301), it is contended that fixing of a cut off date by _per se_ an act of discrimination and that the fixation of cut off date by Rule 3(1) of the Rules, 1995 is in violation to Article 14 of the Constitution of India and is therefore liable to be quashed. It is further contended that the petitioner, who is otherwise fully eligible for pension, should therefore be granted pension and all arrears thereof from the date of his resignation in 1979 after _**WP(C).29207/16**_ 4 deducting the amounts already paid to him as provident fund with interest from the amounts so payable to him. Reliance is also placed on the decisions of the Apex Court in _**N.L.Abhyankar and others etc. v. Union of India**_ (AIR 1984 SC 1247], _**Union of India v. Bidhubhushan Malik and others**_ (AIR 1984 SC 1177) and _**D.S.Nakara and others v. Union of India**_ [(1983)1 SCC 305]. 6. Learned counsel for the 1[st] respondent submits that the Rules, which have come into effect on 1.11.1993, specifically provide that the same shall be applicable only to those persons who were in service on or after the 1[st] day of January, 1986. Since the petitioner had admittedly resigned from service in 1979, he was obviously not in service of the LIC on 1.1.1986 and is therefore not covered by the provisions of the Rules. It is stated that this writ petition, which is preferred 21 years after the promulgation of the Rules, is clearly an experimental litigation and is so obviously belated that it amounts to an abuse of process of Court. The provision of the Rules providing for the applicability thereof was in existence from 1995 onwards and the attempt to now challenge the provision makes a mockery of the law and legal process. It is further submitted that the decision of the Apex Court in _**Asger Ibrahim Amin's**_ 5 _**WP(C).29207/16**_ _**case (supra)**_ is not applicable to the facts of the instant case, since the only question considered by the Apex Court was whether a person to whom the Rules were applicable could be denied pension on the ground that he had resigned from service. The facts of the present case are completely different. 7. I have considered the contentions advanced on either side. I have also considered the decisions relied upon by the petitioner in support of his contention. The petitioner's arguments are to the effect that he, being an employee of the LIC, who had put in more than 20 years of service, should be paid pension in terms of the Rules. Apart from stating that he came to know in 2015 that the Apex Court had held that persons who resigned from service would also be entitled to pension, no explanation whatsoever is provided for not challenging the provisions of applicability contained in the Rules till 2016. The contention of the petitioner is that the fixing of the cut off date for the applicability of the Rules is an arbitrary exercise and amounts to discrimination. 8. The question of reasonableness or otherwise of the fixation of a cut off date in a pension regulation is definitely a matter which can gain the attention of this Court in a properly instituted writ petition. The authorities relied on by the _**WP(C).29207/16**_ 6 petitioner, no doubt, lay down the proposition that discrimination between pensioners forming a single class and governed by the same rules by the fixation of an arbitrary cut off date would do violence to the principle of equality enshrined in Article 14 of the Constitution of India. The petitioner seeks to extend the said proposition to an absolute prohibition on the fixation of any date at all for the applicability of the Pension Rules. This evidently is not the meaning of the purport of the decisions relied on. What is essentially under challenge here is the fixation of a date from which a pension scheme has been made applicable. At the time when the petitioner entered service of the LIC, there was no pension scheme applicable. This was the position as on the date when the petitioner left the service of the LIC on resignation. The pension rules were promulgated in the year 1995. The said rules specifically provided clauses as to the applicability of the rules. It is trite law that fixing the date of application for a particular set of pension regulations, per se, cannot be challenged on the ground of discrimination. 9. There is no challenge to the power of the Central Government to frame the regulations. Section 48(2)(cc) of the Life Insurance Corporation Act, 1956 provides that Central _**WP(C).29207/16**_ 7 Government may, by notification in the official gazette, make rules providing for the terms and conditions of service of the employees of the Corporation. Rule 1(2) of the Life Insurance Corporation of India (Employees) Pension Rules, 1995 reads as follows: “ _1(2). Save as otherwise expressly provided in these rules, these rules shall be deemed to have come into force on the 1[st] day of November, 1993.”_ Rule 2(j) defines 'employee' as follows: _“ 'employee' means any person employed in the service of the Corporation on full-time work on permanent basis and who opts and is governed by these rules but does not include an employee retired before the commencement of these rules and who is drawing pension from the Pension Fund of the Oriental Government Security Life Assurance Company Limited in accordance with sub-regulation (2) of regulation 76 of the Life Insurance Corporation of India (Staff) Regulations, 1960, made under the Act;_ _provided that where the Chairman of the Corporation appointed by the Central Government in accordance with Section 4 of the Act was immediately preceding such appointment an Employee of the Corporation, then, subject to the terms of any contract, agreement or letter of appointment or directions issued by the Central Government, such Chairman for the purposes of these rules shall also be deemed to be an employee of the Corporation.”_ 8 _**WP(C).29207/16**_ 10. Rule 2(n) provides that “notified date” means the date on which these rules are published in the Official Gazette. Rule 2(q) defines pensioner as an employee eligible for pension under these rules. Rule 3 provides for application of the Rules. Rule 3(1)(a), 3(2)(a), 3(3)(a) and 3(4) reads as follows: _“3._ _**Application –** These Rules shall apply to employees who,-_ _(1) (a) were in the service of the Corporation on or after the 1[st] day of January, 1986 but had retired before the 1[st] day of November, 1993;_ _xx xx xx_ _(2)(a) have retired on or after the 1[st] day of November, 1993 but before the notified date;_ _xx xx xx_ _(3)(a) are in the service of the Corporation before the notified date and continue to be in the service of the Corporation on or after the notified date;_ _xx xx xx_ _(4) join the service of the Corporation on or after the notified date._ **==> picture [163 x 10] intentionally omitted <==** 11 _._ Rules could be prospective or retrospective. There was power in the Union Government to determine the date of application to the rules as well. That is all that has been done in the instant case. In the above circumstances, there is no fixation of a cut off date involved in the instant case and what _**WP(C).29207/16**_ 9 is under challenge is the date of effect of the pension rules. In the instant case, the Rules were promulgated in the year 1995. The grievance of the petitioner is as to the provision that the Rules shall be applicable only to those persons who were in service as on the prescribed date. No explanation which would appeal to a reasonable mind has been given for the delay on the part of the petitioner to challenge the said provision till the year 2016. The reason stated is only that the petitioner came to know of the decision in _**Asger Ibrahim Amin's case (supra)**_ rendered by the Supreme Court in 2015. The facts of the said case would disclose that there was no occasion for the petitioner therein to challenge the date of effect or the coverage of the Rules, since he was a person who was specifically within the coverage of the Rules. The only question was whether resignation would disentitle him from claiming pension. In spite of the vociferous arguments raised by the representative of the petitioner, I find nothing in the judgment of the Apex Court which states that an employee would be entitled to pension regardless of his not being covered by the Pension Rules. The Apex Court was specifically considering the case of an employee who was admittedly covered by the Rules as provided in Rule 3 of the Rules. 10 _**WP(C).29207/16**_ 12. In the above circumstances, the decisions relied upon by the petitioner cannot help him in the facts and circumstances of the instant case. I find that the writ petition filed challenging the provisions of the applicability of the Rules after 21 years of it's promulgation and without any reasonable explanation for the delay is belated. Moreover, prayers (a) and (b) in the writ petition which are for the benefits under the Pension Rules cannot be allowed, since the petitioner was not a person entitled to the benefits of the Rules in terms of Rule 1(2) and Rule 3(1)(a) of the Act and does not answer the definition of 'employee' or 'pensioner' under the Rules. With regard to prayer No.(c), I find that no grounds have been raised to sustain a challenge to the provision contained in Rule 1(2) and 3(1)(a) of the LIC of India Pension Rules, 1955. In the result, the writ petition fails and is accordingly dismissed. In the facts and circumstances of the case, there will be no order as to costs. **ANU SIVARAMAN JUDGE** _vgs_