S. Siri Jagan, J.

1. This Original Petition is filed by the Managing Director of the Kerala State Civil Supplies Corporation Limited, challenging Ext. P8 order of the Kerala Lok Ayukta by which the Lok Ayukta held that the action of the Corporation in not allowing the 2nd respondent to continue in service as a Helper till he attains the age of 60 years amounts to mal-administration as defined under the Kerala Lok Ayukta Act and directing the petitioner to reinstate the 2nd respondent forthwith.

2. Before dealing with the issue involved, we must note the fact that in this Original Petition, there was an order of stay and, therefore, the order of the Lok Ayukta was not complied with. In the meantime, the 2nd respondent completed the age of 60 years and, therefore, the order is incapable of being complied with at this point of time. However, we further note that in C.M.P.No.47814 of 2001 filed by the 2nd respondent for vacating the interim order of stay, this Court had made it clear that if the writ petitioner fails at the final hearing, the petitioner shall be liable to pay all benefits to the 2nd respondent for the period during which the stay operated. In the circumstances, it has become necessary to dispose of the Original Petition on merits. The facts necessary for disposal of this Original Petition are as follows.

3. The 2nd respondent was a Class IV employee of the petitioner-Corporation which is a fully Government owned Company registered under the Companies Act, 1956. At one point of time, considering his qualifications, the 2nd respondent was appointed as Driver in the Corporation with effect from 1-8-1996, in which post he was to undergo probation for a period of two years within a continuous period of three years. Since the performance of the 2nd respondent during the period of probation, even after the same was extended for a further period of six months, was not satisfactory, his probation was terminated and he was reverted to the post of Helper with effect from 15-3-1999. The normal retirement age in the Corporation was 58 years. The 2nd respondent was due to attain the age of superannuation on 31-12-1999. However, being an ex-serviceman, he claimed that he is entitled to continue in service till he attains the age of 60 years on the strength of a Government Order, namely, G.O(P)535/90/Fin.dated 25-10-1990, which stipulated that ex-servicemen who were in armed forces prior to 7-4-1970 and who has been appointed as last grade employees in the last grade service in the State after 7-4-1970 would be eligible for the benefit of a rule providing for continuation in service up to the age of 60 years, provided they continue to be in the last grade service. The petitioner-Corporation entertained a doubt as to whether this benefit would be applicable to the 2nd respondent in so far as for a brief period, he was actually working as Driver, which did not come in the last grade service. Therefore, by Ext.P2 letter, the Corporation sought the opinion of the Principal Secretary to Government in the matter. By Ext.P3 clarification, the Government informed the Corporation that they have examined the matter in detail and agreed to the proposal to extend the service of the 2nd respondent till he attains the age of 60 years as a special case in relaxation of the Rules. However, in spite of the said clarification, the 2nd respondent was not allowed to continue in service beyond 31-12-1999 when the second respondent attained the age of 58 years.

4. The 2nd respondent thereupon filed a complaint before the Lok Ayukta complaining of mal-administration in the matter of non-compliance of the directions of the Government by the petitioner Corporation. Accepting the case of the 2nd respondent, the Lok Ayukta found that the refusal of the Corporation to obey Ext.P3 order of the Government and ordering retirement of the 2nd respondent before attaining the age of 60 years constitute mal-administration as defined under the Lok Ayukta Act and on that finding, directed the Corporation to allow the 2nd respondent to continue in service as Helper till he attains the age of 60 years by reinstating him forthwith. This order is under challenge in this Original Petition.

5. The main contention of the petitioner-Corporation is that the Lok Ayukta did not have jurisdiction to deal with the complaint at all in so far as action in respect of service matters of public servants has been specifically taken out of the purview of the jurisdiction of Lok Ayukta by virtue of the provisions of the. Arguments were advanced by both sides on this point and we have considered the same in detail.

6. The argument of the learned Counsel for the petitioner-Corporation is that under Section 8 of the Kerala Lok Ayukta Act, 1999, the Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation under the in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. Item (d) of the Second Schedule to the relates to action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants, but not including actions relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. In answer to this, learned Counsel for the 2nd respondent would submit that the action of the petitioner-Corporation in refusing to obey the orders of the Government directing continuance of the 2nd respondent till he attains the age of 60 years amounts to mal-administration as defined under Section 2(k) of the Kerala Lok Ayukta Act and, therefore, the Lok Ayukta necessarily had jurisdiction to decide the issue.

7. On a consideration of the arguments of learned Counsel as also the relevant provisions of the Kerala Lok Ayukta Act, 1999, we are of opinion that the petitioner is well founded in its contention. Although, the Lok Ayukta had jurisdiction to conduct any investigation under the in case of a complaint involving a "grievance" which is defined under Section 2(h) to mean a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration, such jurisdiction is circumscribed by the provisions of Sections 7 and 8 which enumerates the matters which may be investigated by the Lok Ayukta and Upa Lok Ayukta and matters not subject to such investigation respectively. Under Section 8(l), it is specifically provided that the Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action, if such action relates to a matter specified in the Second Schedule. Item (b) of the Second Schedule consists of action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants, but not including actions relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. Going by these provisions, even if there is mal-administration, if the grievance complained of as mal-administration relates to an action enumerated in item (d) of Second Schedule, the Lok Ayuktas jurisdiction in respect of that matter is specifically excluded from the purview of the investigation of the Lok Ayukta unless it relates to claims for pension, gratuity, provident fund or any claims which arises on retirement, removal or termination of service. Although, counsel for the 2nd respondent raised a contention that the grievance complained of relates to retirement of the 2nd respondent, by virtue of the exception, the matter should be construed to be within the jurisdiction of the Lok Ayukta, we are not satisfied that the contention of the 2nd respondent is sustainable. What is excepted from Item (d) is actions relating to claims for pension etc., or to claims for pension etc., or to claims which arise on retirement, removal or termination of services. The claim of the 2nd respondent to continue in service up to the age of 60 years is certainly not one relating to claims for pension etc., or claims which arise on retirement, removal or termination of services. In that view, we have no hesitation in holding that the issue involved in the complaint before the Lok Ayukta filed by the 2nd respondent was a matter specifically excluded from the matters which were subject to the investigation of the Lok Ayukta under Section 8 of the. Therefore, the Lok Ayukta could not have dealt with the complaint filed by the 2nd respondent and, therefore, Ext.P8 order of the Lok Ayukta was without jurisdiction and hence unsustainable.

8. However, we do not propose to let the matter rest there and are inclined to consider the merits of the claim of the 2nd respondent, especially since arguments were advanced on merits also before us.

9. The contention of the petitioner before us is that G.O(P)535/90/Fin dated 25-10-1990 is an order issued by the Government of Kerala under the Kerala Service Rules applicable to employees under the service of the Government of Kerala, which does not ipso facto apply to employees of the petitioner-Corporation unless the same is adopted by the Corporation by amending the service rules applicable to the employees of the Corporation. In support of this contention, the petitioner has produced Ext.P5 letter dated 12-1-2000 issued by the Government of Kerala in reply to Ext.P4 letter dated 24-12-1999 from the petitioner, to that effect. This argument though attractive, does not appear to be applicable to the present case. The petitioner had no such case till this Original Petition was filed. As suggested by Ext.P2 letter of the petitioner addressed to the Government and Ext.P3 reply thereto, the petitioner-Corporation had requested for orders as to whether the 2nd respondent is eligible for extension of service till he attains the age of 60 years, which was what was issued as per Ext.P3. The petitioner, being a Government Company is bound by orders of the Government. Even in Ext.P5, the Government does not alter its earlier order Ext.P3. Since Ext.P3 is binding on the Corporation, the petitioner could not have retired the petitioner on attaining 58 years contrary to Ext.P3. That being so, the petitioner would be eligible to get the emoluments due to him which would have been payable had he been allowed to continue till he attained the age of 60 years.

Therefore, while setting aside Ext.P8 order, we make it clear that it would be open to the 2nd respondent to agitate his claim before the appropriate authority, notwithstanding the same. Without prejudice to such right of the 2nd respondent, this Original Petition is allowed and Ext.P8 order of the Ist respondent is set aside.