IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WA.No. 334 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.5306/2010 Dated 18/02/2010 .................... APPELLANT/PETITIONER: -------------- K.K.C.ISMAIL, S/O.KOYAPOPPU, AGED 58 YEARS, SR.ASST. (MATERIALS), M/S.STEEL COMPLEX LTD., FEROKE, CALICUT. BY ADV. SRI.ASWIN GOPAKUMAR RESPONDENT(S)/RESPONDENTS: --------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. M/S.STEEL COMPLEX LTD., FEROKE, CALICUT, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, STEEL COMPLEX LTD., FEROKE, CALICUT. BY GOVT. PLEADER SMT.R.BINDU FOR R1 ADV.SRI.T.V.GEORGE FOR R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.334/2010 ------------------------------ Dated this, the 25th day of February, 2010 JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. He is an employee of the 2nd respondent Steel Complex Limited, Feroke, which is a State Government undertaking. As per Ext.P2 standing orders of the Company, the age of superannuation is 58 But, in appropriate cases, the management has the power to extend the period of service, subject to the condition that the extension shall not exceed three months at a time. The date of superannuation of the appellant is 28.02.2010. There is a proposal by the Steel Authority of India to take over the establishment of the 2nd respondent Company. In the Steel Authority of India, the age of superannuation is 60. So, if the proposal to take over the 2nd respondent by the Steel Authority of India materialises, the employees of the 2nd respondent can WA No.334/2010 - 2 - continue up to the age of 60. But, unfortunately, the appellant is going to retire before the proposals are finalised. In that context, he filed representations before the 2nd respondent and thereafter before the 1st respondent Government of Kerala, claiming retention in service beyond 58 years. Since those representations were not considered the Writ Petition was filed. The learned Single Judge took the view that in the absence of any legal right, there cannot be any direction to the respondents to retain the appellant in service beyond the age of 58. The appellant pleaded that he may be retained, as an interim measure, till the proposal of the Steel Authority of India to take over the 2nd respondent is finalised. That prayer was also declined on the ground that the appellant does not have a legal right to get that relief. Feeling aggrieved by the said judgment, this Writ Appeal is preferred. 2. Sri.Aswin Gopakumar, learned counsel for the appellant submitted that in view of the proviso to Clause 20(a) of Ext.P2 standing orders, the 2nd respondent has got a duty to consider the case of the appellant for extension and the appellant has WA No.334/2010 - 3 - got a corresponding right. Therefore, this Court should issue a writ of mandamus to the 2nd respondent to consider the claim of the appellant. 3. Clause 20(a) of Ext.P2, which is the relevant clause in this case, reads as follows: “20. Termination of employment: a) A workman on attaining 58 years of age shall be deemed to have attained the age of superannuation and shall vacate his employment. Provided, however, that the management may extend his/her services for such period not exceeding three months at a time as they deem necessary.” The proviso quoted above is an enabling provision, which enables the management, in appropriate cases, to grant extension to an employee for a period of three months at a time. It is something in the nature of a power to relax the main provision, having regard to the special facts of the case. 4. In this case, the appellant does not claim that having regard to any special facts relating to him, he is entitled to get extension. He claims a general relief of extension of retirement WA No.334/2010 - 4 - age up to 60, especially, in the context of the proposal of another Company to take over the 2nd respondent Company and the age of superannuation in the former Company being 60. We think, the proviso to Clause 20(a) of Ext.P2 is not meant to take care of the above situation. In the absence of any legal right in the appellant and a corresponding duty in the 2nd respondent, it is elementary that no writ of mandamus could be issued from this Court. Even assuming the power under the proviso to Clause 20(a) is a power coupled with a duty, which has to be exercised when a person interested makes a motion for the same, we think, the facts of this case do not disclose any special circumstance in which the management has to exercise the discretionary power in favour of the appellant. The power under the said proviso is not meant to be exercised in a situation disclosed by the facts of this case. 5. Further, going by the scheme of Clause 20, it would appear that the proviso is not framed for the benefit of the employees, but for the benefit of the management. So, the management has no duty to exercise the power under the WA No.334/2010 - 5 - proviso on a motion made by an employee. In the result, the Writ Appeal fails and it is, accordingly, dismissed. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.