IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WA.No. 1417 of 2010 --------------------- AGAINST THE ORDER IN RP.1086/2008 Dated 07/06/2010 .................... APPELLANT/ PETITIONER ------------------------ C.M.PHILOMINA, W/O.MATHEW, SENIOR ASSISTANT, KERALA AUTOMOBILES LTD., ARALUMMOODU.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT/ RESPONDENT ------------------------- KERALA AUTOMOBILES LIMITED, ARALUMMOODU, TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.P.A.AHAMED,SC,KERALA AUTOMOBILES LTD. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A.No. 1417 OF 2010 ......................................................................... Dated this the 9th December, 2010 J U D G M E N T J. Chelameswar, CJ. The unsuccessful petitioner in W.P(C) 8672 of 2006 is the appellant herein. By judgment dated 19th September, 2008, the learned Judge dismissed the Writ Petition. Hence the appeal. 2. The appellant is the employee of the sole respondent, which is a Government owned company. The Writ petition is filed with the prayers as follows: “i) Issue a writ of certiorari or other appropriate writs , directions or orders calling for the records leading upto Ext.P4, quash the same. ii) issue a writ of mandamus or other appropriate writs, directions or orders directing the respondent to give promotion to the petitioner to the post of Senior Assistant with effect from 09.01.1995 or in the alternative from 14.08.1997 and further promotion to the post of Junior Executive with effect from December, 2004. W.A.No. 1417 OF 2010 2 iii) Direct the respondent to grant the due promotion, implement and recognise the legitimate claim of the petitioner for getting the promotion to the post of Senior Assistant and Junior Executive with effect from 09.01.1995 or from 14.08.1997 and December, 2004 respectively. iv) Direct the respondent to disburse the monitory benefits to the petitioner forthwith in the event of promoting the petitioner to the post of Senior Assistant with effect from 14.08.1997 and further promotion to the post of Jun ior Executive with effect from December, 2004. v) Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case. vi) Award the costs of these proceedings to the petitioner. ” 3. By the judgment under appeal, the learned Judge opined that the various rules relied upon by the appellant for basing his claim for promotion are only rules which laid down the eligibility of the appellant to be considered for promotion, but do not create a right of promotion. 4. The learned Counsel for the appellant Adv. Mr. Pirappancode V.S. Sudheer argued that in view of the decision W.A.No. 1417 OF 2010 3 of the respondent not to give promotion to the appellant , the appellant made a representation before the Government of Kerala. The Government of Kerala in turn asked for an explanation from the Managing Director of the Company for not promoting the appellant herein, by its letter dated 20th September, 2007, marked as Annexure-A4(3) in the Review Petition filed in the Writ Petition. In response to the said enquiry, the Managing Director of the Company informed the Government by letter dated 03.10.2007 as follows:: “The following informations are submitted in compliance with the directions contained in the letter referred to above. 3. No specific reasons are said to have been given for not giving promotion with retrospective effect from 01.04.1994 to Smt. Philomina, while promoting her as Senior Assistant on 24.10.2004. But, it is seen that in view of not giving retrospective effect to the amendment brought to certain Service Rules, in 2004, a stand has been subsequently taken for not retrospectively promoting her. It is not understood the circumstance, that despite no amendment has W.A.No. 1417 OF 2010 4 been effected to Rule 6.01, of taking such a stand. In the vacancy of Senior Assistant that had arisen in 1994 and 1995, Smt. Philomina has been eligible for promotion. 4. The W.P.(C)No.8672/2006 filed by Smt. Philomina has been posted for hearing (date has not been fixed) and that the Government is not an opposite party therein. ” 5. We may state herein that the original of this letter is in vernacular. The above extract is the translation of the said letter supplied by the appellant. Though it is rather difficult to understand what exactly is sought to be communicated by the above extracted translation, we are informed at the bar that the substance of the communication is to inform the Government that in view of the fact that the rules, governing the service conditions of the employees of the respondent Corporation, were proposed to be amended sometime in the year 1995 and since the company is a Government owned Company, the respondent thought that the approval of the Government for making such amendment is required and therefore such approval was sought for. The said approval was granted only in the year 2004 W.A.No. 1417 OF 2010 5 and while granting such approval no approval was granted for giving retrospective effect to the rules and therefore the appellant could not be promoted as claimed by her. 6. We are of the opinion that first of all, the content of the communication dated 03.10.2007 reflects only the individual opinion of the author of the communication. Secondly, the question of granting retrospective effect to the rules framed by the respondent Company does not arise in law. Except the sovereign law making bodies, the subordinate law making authorities generally do not have such a right unless expressly authorised by law. The respondent is not even a statutory body, but a Company registered under the Companies Act. In the circumstances, whatever be the understanding of the author of the above mentioned communication, the legal position is that the rules framed by the respondent Company cannot have any retrospective effect at all. Therefore, the resultant situation is that from 1994 to 2004 the Company did not choose to fill up the post of Senior Assistant either with the appellant or with any other person similarly situated like the appellant. Obviously, W.A.No. 1417 OF 2010 6 the Company did not feel the need to fill up such post. What reasons prompted the Company not to fill that post is beyond the scope of inquiry in the instant appeal. As rightly held by the judgment under appeal, the appellant has no enforcible right of appeal. We therefore see no reason to interfere with the judgment under appeal and the Writ Appeal is dismissed. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk