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Nagaraj P. Vs. K.S.R.T.C. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 3876 of 1982
Judge
Reported inILR1982KAR352; 1983(1)KarLJ475; (1983)IILLJ229Kant
AppellantNagaraj P.
RespondentK.S.R.T.C. and anr.
Excerpt:
.....the contrary, respondent on oath has deposed that a panchayat was convened and an attempt made by her to join the matrimonial home has failed which shows that she has not deserted, on the contrary it is the appellant who has deserted her. - if this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option. it is well settled that the existence of a legal right is the very foundation for he issue of a writ of mandamus......dated 12th october, 1982). therefore, the contention that the clause set out earlier created a right for extension is patently untenable. the endorsement issued to the petitioner indicates that the request of the petitioner for the third extension has been rejected as the competent authority was of the view that it was not in the interest of the service of the corporation. 6. i am unable to agree that the circular (annexure-d) which is said to have been issued on behalf of the corporation which state that all the honest employees of the corporation would get extension, created any right in the petitioner. the statement, even if it has been issued is a general statement assuring that there would be fair deal in the matter of consideration of request for extension. i am also unable to.....
Judgment:
ORDER

1. The petitioner, an employee in the service of the Karnataka State Road Transport Corporation (hereinafter referred to as the Corporation) has prayed for the issue of a writ in the nature of mandamus directing the respondents to grant him one year's extension of service with effect from 25th November, 1982.

2. The facts of the case, in brief are as follows : The petitioner is an employee of the Corporation. The relevant provision regarding the age of superannuation of the employees of the Corporation is Cl.VII of the Agreement. That Clause is produced as Annexure-C. It reads :

'7. Retiring Age : The age of superannuation for Class III and IV employees, who as on 1st April, 1965 do not complete 55 years of age, shall be 55 years. However, this shall be extendable up 58 years subject to medical examination and certification of physical fitness by an authority to be stipulated by the management for each year of extension of service, and subject also to the restrictions if any under any Act for the time being in force and the rules thereunder. The dates of birth as entered in service registers of the employees upto this date shall be taken as final and shall not be liable to be questioned.'

3. The petitioner reached the age of superannuation of 55 years on 24th November, 1980. At his request he was granted extension of service for a period of one year. Again he was given a second extension for one more year. The petitioner again requested for the third extension. This request of the petitioner was rejected as per endorsement dated 7th October, 1982 (Annexure-B). It reads :

'K.S.R.T.C. Regional Workshops, Bangalore.

No. KST RWB EST P/4803/82-83 dated 7th October, 1982.

Endorsement

Sub : Grant of Extension in service.

Ref : RWEO No. 34 retiring Sri P. Nagaraj, Design Head

Artisan, T. No. 443 attached to Machine Shop.

2. His application dated 5th August, 1982 for grant of

extension in service from 25th November, 1982 to 24th

November, 1983.

3. Orders of the Committee dated 20th September, 1982.

Whereas the Committee empowered to consider and grant extension of service has examined the personal records and performance of Sri P. Nagaraj, Design Head Artisan, T.No. 443 and having considered his application at Sl. No. 2 above, has ordered that grant of extension of service will not subserve the interest of the Corporation, I am desired to communicate the order of the said authority that the request of Sri P. Nagaraj, Design Head Artisan, T. No. 443 of extension in service in service as prayed for, is rejected.

Sd/-

Deputy General Manager and Works Manager

KSRTC Regional Workshops'.

The endorsement indicates that a committee constituted for considering the request for extension decided that the request of the petitioner for the third extension should be rejected.

4. The learned counsel appearing for the petitioner contends that having regard to the wording of Class VII of the Agreement extracted above, the petitioner had a right to get extension upto 58 years and therefore the refusal on the part of the respondent to grant extension was arbitrary and, therefore, he was entitled to the relief sought for in the petition. The learned counsel also relied on a statement said to have been made by the General Manager of the Corporation assuring employees that extension will be granted to all the honest workers of the Corporation (Annexure-D). In view of the said general assurance, learned counsel submitted that the petitioner ought to have been given the extension of service.

5. I find no substance in the contention urged for the petitioner. Admittedly, the age of retirement of all Class III and IV employee of the Corporation is fixed is 55 years. Therefore, an employee can be said to possess the right to continue in service till 55 years, unless he is removed from service in accordance with law earlier to that age. But as far as extension is concerned, I am unable to agree that the clause created any right in any employee. The very concept of extension implies that it may be granted at the discretion of the authority empowered to grant it, but if confers no right on the concerned employees. This question is directly covered by the judgment of the Supreme Court in Kailash Chandra v. Union of India [1961-II L.L.J. 639]. The relevant portion of the judgment reads :

'The first clause of the first sentence of the relevant rule taken by itself certainly given the appropriate authority the right to require a ministerial servant to retire as soon as he attains the age of 55 years. The question is : whether this right is cut down by the second clause, viz. 'But should ordinarily be retained in service if he continues to be efficient upto the age of 60 years. .. That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that he continues to be efficient. If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option. If the intention had been to cut down the right conferred on the authority to retire a servant at the age of 55 years, the proper language to express such intention would have been, ..... 'may, be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up the age of 60 years' or some such similar words. The use of 'should ordinarily be retained in service' is sufficient index to the mind of the rule-making authority that the right conferred by the first clause of the sentence remained. Leaving out for the present the word 'ordinarily' the rule would read thus :

'A ministerial servant who is not governed by sub-clause (b) may be should may be require to retire at the age of 55 years but should be retained in service if he continues to be efficient up the age of 60 years.'

Reading these words without the word 'ordinarily' we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so.'

It is clear from the judgment that even if the rules were to be worded that an employee should be granted the extension if he is found efficient, the employee has no right to the extension, even if he was found to be efficient (see also the Judgment in WP No. 34992 of 1982 dated 12th October, 1982). Therefore, the contention that the clause set out earlier created a right for extension is patently untenable. The endorsement issued to the petitioner indicates that the request of the petitioner for the third extension has been rejected as the competent authority was of the view that it was not in the interest of the service of the Corporation.

6. I am unable to agree that the circular (Annexure-D) which is said to have been issued on behalf of the Corporation which state that all the honest employees of the Corporation would get extension, created any right in the petitioner. The statement, even if it has been issued is a general statement assuring that there would be fair deal in the matter of consideration of request for extension. I am also unable to agree that if extension is refused to an individual, it attaches stigma to his character or conduct as was sought to be made out by the learned Counsel for the petitioner. As the wording of the Cl.VII itself indicates the grant of extensions is subject to medical examination and certification of physical fitness and, therefore, when an extension is refused, it only means that in the opinion of the authority it was not in the interest of the service of the Corporation to grant the extension and it does not cast any aspersion on the person to whom the extension is not granted.

7. The learned Counsel submitted that the ratio of the judgment of the Supreme Court in Dunlop India Ltd. v. Workmen [1972-II L.L.J. 1] read with the circular (Annexure-D) created a right to get extension. At para 17 of the judgment, on which the learned Counsel relied the Supreme Court recorded a finding that the management in that case, had decided not to retire any employees before 58 years, though the age of retirement was 55 years as per Cl.28 of the Standing Order concerned in the said case.

8. I do not agree that the said decision supports the contention of the petitioner. Admittedly, the age of retirement of Class III and IV employees of the Corporation is 55 years. The Corporation has not taken any decision that though the age of retirement under the existing rule was 55 years, it had decided not to retire any of its employees earlier to 58 years as was done by the management in that case. It is well settled that the existence of a legal right is the very foundation for he issue of a writ of mandamus. The petitioner has no such right.

9. For these reasons, I find no ground to entertain the writ petition. It is therefore. It is therefore rejected.


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