Kerala High Court
Preetha P. Menon vs State Of Kerala on 8 April, 2025
W.P.(C) Nos.1928 & 26432 of 2022 1
2025:KER:30731
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
WP(C) NO. 1928 OF 2022
PETITIONER:
BHANUMATHI T.,AGED 59 YEARS
ASSISTANT MANGER (HR), KERALA AGRO MACHINERY
CORPORATION LTD (KAMCO), ATHANI, ERNAKULAM 683 585
BY ADVS.
K.JAJU BABU (SR.)
M.U.VIJAYALAKSHMI
BRIJESH MOHAN
RESPONDENTS:
1 STATE OF KERALA
REP.BY SECRETARY TO GOVERNMENT,
AGRICULTURE DEVELOPMENT AND FARMERS WELFARE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 KERALA AGRO MACHINERY CORPORATION LTD (KAMCO),
ATHANI, ERNAKULAM 683 585, REP.BY ITS
MANAGING DIRECTOR.
3 THE MANAGING DIRECTOR.
KERALA AGRO MACHINERY CORPORATION LTD
(KAMCO), ,ATHANI, ERNAKULAM 683 585.
4 SRI. HARIDAS V.,PERSONAL SECRETARY,
KERALA AGRO MACHINERY CORPORATION LTD (KAMCO),
KANJIKODE, PALAKKAD 678 621
5 SRI. NAVEENRAJ D.S., PERSONAL SECRETARY,
KERALA AGRO MACHINERY CORPORATION LTD (KAMCO),
ATHANI, ERNAKULAM 683 585
W.P.(C) Nos.1928 & 26432 of 2022 2
2025:KER:30731
6 SRI. RANJITH S.,PERSONAL SECRETARY,
KERALA AGRO MACHINERY CORPORATION LTD (KAMCO),
ATHANI, ERNAKULAM 683 585
BY ADVS.
RENJITH THAMPAN (SR.)
V.M.KRISHNAKUMAR
R2 & R3 BY ADVS.M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
KRIPA C. NAIR
JAI MOHAN
OTHER PRESENT:
GP- RIYAL DEVASSY,
R6- RENJITH THAMPAN(SR)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2025, ALONG WITH WP(C).26432/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.1928 & 26432 of 2022 3
2025:KER:30731
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
WP(C) NO. 26432 OF 2022
PETITIONER:
PREETHA P. MENON,AGED 45 YEARS
ASSISTANT MANAGER,
KERALA AGRO MACHINERY CORPORATION LTD.,
ATHANI - ALUVA, ERNAKULAM DISTRICT,
PIN - 683585
BY ADVS.P.K.SURESH KUMAR (SR.)
K.P.SUDHEER
ANJALI MENON
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF AGRICULTURE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 KERALA AGRO MACHINERY CORPORATION LTD
REPRESENTED BY ITS MANAGING DIRECTOR,
ATHANI - ALUVA, ERNAKULAM DISTRICT.,
PIN - 683585
3 THE MANAGING DIRECTOR
KERALA AGRO MACHINERY CORPORATION LTD
ATHANI - ALUVA, ERNAKULAM DISTRICT,
PIN - 683585
4 HARIDAS. V, DEPUTY MANAGER,
KERALA AGRO MACHINERY CORPORATION LTD.,
NEW INDUSTRIAL DEVELOPMENT AREA,
MENON PARA ROAD, KANJIKODE, PALAKKAD,
PIN - 678621
W.P.(C) Nos.1928 & 26432 of 2022 4
2025:KER:30731
5 RANJITH. M.V., DEPUTY MANAGER,
KERALA AGRO MACHINERY CORPORATION LTD.,
ATHANI - ALUVA, ERNAKULAM DISTRICT,
PIN - 683585
R2 & R3 BY ADVS.
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
BY ADVS.
V.M.KRISHNAKUMAR
MAYA M.
OTHER PRESENT:
GP- RIYAL DEVASSY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2025, ALONG WITH WP(C).1928/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.1928 & 26432 of 2022 5
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VIJU ABRAHAM, J.
.................................................................
W.P.(C) Nos.1928 & 26432 of 2022
.................................................................
Dated this the 8th day of April, 2025
JUDGMENT
Since common issues are involved in these writ petitions, both
of the writ petitions are heard and disposed of by this common
judgment.
2. Petitioner at the time of filing of the writ petition was working
as Assistant Manager (HR) under the 2nd respondent. She has now
retired from service. It is contended that the employees of the 2 nd
respondent Corporation are governed by Ext.P1 Special Rules wherein
the post of Assistant Manager is included as G9 under the Human
Resources (HR) Department and the post of Personal Secretary is
included in the Secretarial Wing though the same is also included as
G9. As per Ext.P1, promotion to the post of Deputy Manager is to be
done by selection from Assistant Managers in G9 having degree with
two years service. Though the promotion to the post of Deputy Manager
was over due and the petitioner made request in this regard, no action
has been taken to grant promotion to the petitioner. Ext.P2 is the
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information provided to another employee, who is the petitioner in the
other writ petition, intimating that only on finalisation of the staff pattern
steps could be taken for promotion to the post of Deputy Manager.
Petitioner submits that promotions were effected in spite of the fact that
the staff patterns were not finalised in respect of other posts as evident
from Ext.P3. Ultimately by Ext.P4 the staff pattern was approved. Later
the petitioner was called for an interview on the basis of Ext.P5 interview
memo. The interview did not take place and the petitioner was informed
as per Ext.P6 letter that another writ petition filed as W.P.(C) No.26260
of 2019 is pending consideration and therefore interview will be
conducted in terms of the final verdict of the said case. While so steps
were taken to amend Ext.P1 Rules. Draft Rules were approved by the
Director Board of the 2nd respondent and forwarded to the Government
and ultimately by Ext.P8 amended Rules were approved by the
Government as per Ext.P7. By Ext.P8 the post of Personal Secretary is
also included as a feeder category for promotion to the post of Deputy
Manager. Based on the same Ext.P9 interview memo was served on the
petitioner and due to Ext.P8 amended Rules petitioner is treated as
junior to respondents 4 to 6 since they have entered G9 category earlier
than the petitioner. The specific case of the petitioner is that Ext.P7 can
be made applicable only to those vacancies which arose subsequent to
Ext.P7 amendment and two vacancies of Deputy Manager was
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available since 2018 and the petitioner being fully qualified for promotion
to the said post prior to Ext.P7 amendment has to be promoted in terms
of Ext.P1 Rules. It is aggrieved by the same that the present writ petition
has been filed.
3. Initially when the matter came up for consideration on
19.01.2022 this Court has passed an interim order to the effect that the
appointment to the post of Deputy Manager pursuant to the interview
held on 22.01.2022 shall be effected only after obtaining further orders
from this Court. Later taking note of the fact that the petitioner has
retired from service on 31.05.2022 this Court as per order dated
07.07.2022 permitted appointment to the post of Deputy Manager,
however making such appointments purely provisional and subject to
further orders of this Court.
4. Petitioner joined the service of the 2nd respondent Corporation
on 04.12.1997 as an Assistant and promoted to the post of Assistant
Manager on 21.11.2019. Petitioner also relying on Ext.P1 Special Rules
submits that had promotions being effected within time, petitioner would
have been appointed to the post of Deputy Manager. It is due to the
pressure exerted by the Personal Secretaries in the establishment, the
post of Personal Secretary was equated with the post of Assistant
Manager and was put together in the feeder category of the post of
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Deputy Manager. Aggrieved by the same Ext.P2 representation was
submitted by the petitioner and others. Despite the objection 2 nd
respondent Corporation proceeded with the process of amendment and
going by Ext.P3 recommendation of the Corporation a ratio of 1:1 was
fixed between the Assistant Manager and Personal Secretary in the
matter of promotion to the post of Deputy Manager. But when the
Government approved the Rules as per Ext.P4 this ratio was taken
away. The case of the petitioner is that non-prescription of ratio between
two categories of posts is highly arbitrary and opposed to the
fundamental principles of service jurisprudence. Immediately after
coming into force of the new Rules selection was conducted to the two
posts of Deputy Manager (HR) and as per Ext.P5 select list promotion
was granted to respondents 4 and 5 by Ext.P6 order of promotion. The
specific case of the petitioner is that the 4 th respondent's qualification is
B.Com. and Typewriting (Higher) and does not have any qualification in
management or in particular personnel management. Similarly the
qualification of the 5th respondent is degree and MBA in Finance. At the
same time the petitioner who has degree and two post graduate diploma
in personnel management as well as marketing was denied promotion.
Petitioner challenging the promotion granted to respondents 4 and 5 has
filed a representation before the 2nd respondent which was rejected by
Ext.P7. It is aggrieved by the same that the present writ petition has
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been filed.
5. Petitioner would contend that promotions can be made only to
the next higher post in the same discipline as per the present as well as
the unamended Rules and both HR and Secretarial Wings are two
different disciplines and also the new Rules treats HR and Secretarial
Wing as two different disciplines though both fall under non-technical
category and therefore grant of promotion to the Personal Secretaries
as Deputy Managers which is the next higher level post after Assistant
Manager in the HR discipline is ultra vires the Rules.
6. A detailed counter affidavit has been filed by the respondent
Corporation in both the cases. The contention taken by the petitioner in
W.P.(C) No.1928 of 2022 that though Ext.P5 interview notice was
issued intimating that the interview will be held on 11.11.2019 the same
has been adjourned only to help the Personal Secretaries so that the
selection could be made after the amendment of the Special Rules is
without any basis. The staff pattern in respect of the officers was
approved by the Government as per order 20.07.2019, but certain
anomalies were found in the Rules for the recruitment and promotion of
officers and in order to rectify the anomalies, the Government as per
letter No.PU3/207/2019/AGRI dated 29.11.2019 directed to conduct a
study through the Institute of Management in Government (IMG),
Thiruvananthapuram and the said agency was entrusted for a study and
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the report submitted was considered in the Board level sub-committee
and the recommendations of the sub-committee in IMG report was
approved by the Board as per resolution dated 30.01.2021 and
forwarded to the Government. The proposal was by recommending to
consider the promotion to the post of Deputy Manager (HR) in G10 from
the Assistant Manager (HR) in G9 and Personal Secretary in G9 at the
ratio of 1:1. The Government considered the said proposal and
forwarded the same to the Kerala Public Service Commission (KPSC)
for ratification. The KPSC however recommended certain amendments
in the aforesaid Special Rules. Accordingly the Government vide order
dated 07.07.2021 directed the 2nd respondent to submit the draft
recruitment rules after incorporating the recommendations/amendments
of KPSC. The suggestion made by the KPSC was to consider the
Assistant Manager (HR)/Personal Secretary on the basis of original
seniority at G9 level for promotion to the post of Deputy Manager (HR).
The Board of Directors as per resolution dated 10.07.2021 approved to
incorporate amendments in the Special Rules suggested by the KPSC
and to forward the same to the Government for approval and the
Government as per Ext.P7 order dated 30.07.2021 approved the draft
Special Rules. On the basis of the same it is contended by the learned
counsel appearing for the respondent Corporation that the allegation of
bias is unfounded and a transparent procedure has been adopted. It is
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further submitted that this Court cannot sit over the decisions of expert
bodies as a court of appeal and only the decision making process can
be examined and not the decision itself. It is also contended that in the
absence of allegations of mala fides judicial review can only be confined
to the question as to whether any statutory or binding rules has been
contravened in the appointment. In answer to the averment in W.P.(C)
No.26432 of 2022 it is contended in the counter affidavit that the
contention raised in the writ petition that the posts of Personal Secretary
and Assistant Manager cannot be equated and Ext.P4 to the extent it
equates the said posts is invalid cannot be accepted. The essential
qualification for appointment to a post is for the employer to decide and
it is the employer who is best suited to decide the requirements a
candidate must possess according to the needs of the employer and the
nature of work and therefore the contention to the contrary is only to be
rejected. It is contended on the strength of Ext.R2(a) KAMCO Staff Bye-
law, 1973, particularly Clause 6 of Part I that the Board may delete, add
to or amend any of these bye-laws from time to time. It is further
contended relying on Clause 9(1) of Part II of the said Bye-law that no
employee has any right to promotion to any post solely on the ground of
his seniority in service or in any grade or on the ground of his having
held additional charge of that post or having acted in that post or on any
other ground and the promotion will be governed by Special Rules
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issued by the Board. It is contended that the change in qualifications
and the issuance of Ext.P4 norms is a policy decision which is
exclusively within the domain of the executive power and the said
changes were effected not on a mere arbitrary decision or on any
ulterior motive. It is further submitted that the averment that the
amendment was carried out due to the pressure exerted by the Private
Secretaries is devoid of any merit and the changes in Ext.P1 Special
Rules were made keeping in mind the nature of duties of both posts and
the comments received from the Government and the KPSC. As per the
previous Rules there was no promotion avenue for the Personal
Secretaries beyond G9 level and this aspect is also taken into
consideration while effecting amendment to the Special Rules. On the
basis of the same the respondent Corporation has sought for dismissal
of the writ petitions.
7. A detailed counter affidavit has been filed by the 5 th
respondent in W.P.(C) No.26432 of 2022 wherein it is contended that
the promotions are done by a committee comprised of Board of
Directors which includes the Chairman and Managing Director and the
Special Rules is comprehensive as the same lays down detailed criteria
for eligibility and method to be followed while promoting employees and
the promotions are done by a competent committee in which
Government nominated director is also a member. It is further
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contended that the promotions were made based on Rule 4(3) of Ext.P4
which laid down the eligibility criteria for promotion. It specifically
mandates that for promotions against each vacancy, a select list should
be prepared based on the suitability of the candidate from the feeder
category of each discipline and after the approval of the list by the Board
of Directors, the Managing Director will make the appointment and that
the promotions to the post of Assistant Manager onwards are made
based on the suitability of the candidate, based on the weightage,
seniority, performance rating for the last three years and interview. It is
further submitted that as evident from Ext.P5 proceedings of the
promotion committee, the petitioner is named as Sl.No.4 which is
evident of the fact that the petitioner participated in the selection
process for promotion to the post of Deputy Manager and therefore the
petitioner is estopped from challenging the promotion policy thereafter
as held by the Apex Court in Air Commodore Naveen Jain v. Union of
India and others, 2019 KHC 7005 and that in the said judgment it was
also held that if the promotion policy provides equal opportunities to the
officers falling within the zone of consideration, such policy is not
discriminatory in terms of Articles 14 and 16 of the Constitution of India.
The learned senior counsel further relied on the judgment in Hardev
Singh v. Union of India and another, 2011 KHC 4858 wherein the
Apex Court held that no employee has a right to get promotion, but he
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had a right to be considered for promotion and in the present case the
petitioner has been duly considered for promotion and assigned a rank
also and thereafter cannot turn around and challenge the selection
process. As regard the contention of the petitioner in W.P.(C) No.1928
of 2022 that the vacancies which arose before the amendment are to be
filled up on the basis of the unamended Rules is also without any basis
in the light of the judgment of the Apex Court in State of Himachal
Pradesh v. Raj Kumar, 2022 KHC 6587 which was followed by this
Court in Mehaboob P.M. v. State of Kerala, 2022 KHC 557. On the
basis of the same 5th respondent sought for dismissal of the writ petition.
8. I have considered the rival contentions on both sides.
9. The contention raised by the petitioner in W.P.(C) No.1928 of
2022 is that the vacancy has arisen prior to the amendment of the
Special Rules in as much as an interview memo was sent to the
petitioner as evident from Ext.P5 and therefore the appointment should
have been made based on the selection criteria prescribed in the
unamended Rules. Reliance was placed on the decision of a Full Bench
of this Court in Mohanan K.R. v. Director of Homeopathy and others,
2006 KHC 855 in support of the said contention which was decided
relying on the judgment of the Apex Court in Y.V.Rangaiah and others
v. J.Sreenivasa Rao and others, (1983) 3 SCC 284. But the Apex
Court in a subsequent judgment in State of Himachal Pradesh's case
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cited supra which was decided taking into consideration the judgment in
Y.V.Rangaiah's case cited supra overruled the said proposition and
held as follows:
"36.Analysis:
A review of the fifteen cases that have distinguished Rangaiah would
demonstrate that this Court has been consistently carving out
exceptions to the broad proposition formulated in Rangaiah. The
findings in these judgments, that have a direct bearing on the
proposition formulated by Rangaiah are as under:
1. There is no rule of universal application that vacancies must be
necessarily filled on the basis of the law which existed on the date
when they arose, Rangaiah's case must be understood in the context
of the rules involved therein (Deepak Agarwal v. State of U. P., 2011
(6) SCC 725, Para 26; Union of India v. Krishna Kumar, 2019 (4) SCC
319, Para 10).
2. It is now a settled proposition of law that a candidate has a right to
be considered in the light of the existed rules, which implies the "rule in
force" as on the date consideration takes place. The right to be
considered for promotion occurs on the date of consideration of the
eligible candidates (Deepak Agarwal v. State of U. P., 2011 (6) SCC
725, Para 26; Union of India v. Krishna Kumar, 2019 (4) SCC 319,
Para 10).
3. The Government is entitled to take a conscious policy decision not
to fill up the vacancies arising prior to the amendment of the rules. The
employee does not acquire any vested right to being considered for
promotion in accordance with the repealed rules in view of the policy
decision taken by the Government (K. Ramulu v. Suryaprakash Rao,
1997 (3) SCC 59, Paras 12 and 13, Shyam Chandra Das v. State of
Orissa, 2003 (4) SCC 218, Para 9, State of Punjab v. Arun Kumar
Aggarwal, 2007 (10) SCC 402, Para 38; Deepak Agarwal v. State of U.
P., 2011 (6) SCC 725, Para 28). There is no obligation for the
Government to make appointments as per the old rules in the event of
restructuring of the cadre is intended for efficient working of the unit
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(G. Venkateshwara Rao v. Union of India, 1999 (8) SCC 455, Para 4).
The only requirement is that the policy decisions of the Government
must be fair and reasonable and must be justified on the touchstone of
Art.14 (Rajasthan Public Service Commission v. Charan Ram, 1998
(4) SCC 202, Para 15; K. Ramulu v. Suryaprakash Rao, 1997 (3) SCC
59, Para 15).
4. The principle in Rangaiah need not be applied merely because
posts were created, as it is not obligatory for the appointing authority to
fill up the posts immediately (In Delhi Judicial Services Association v.
Delhi High Court, 2001 (5) SCC 145, Para 5).
5. When there is no statutory duty cast upon the State to consider
appointments to vacancies that existed prior to the amendment, the
State cannot be directed to consider the cases (Deepak Agarwal v.
State of U. P., 2011 (6) SCC 725, Para 25).
37.1 The above - referred observations made in the fifteen decisions
that have distinguished Rangaiah's case demonstrate that the wide
principle enunciated therein is substantially watered - down. Almost all
the decisions that distinguished Rangaiah hold that there is no rule of
universal application to the effect that vacancies must necessarily be
filled on the basis of law that existed on the date when they arose. This
only implies that decision in Rangaiah is confined to the facts of that
case.
37. 2 The decision in Deepak Agarwal (supra) is a complete departure
from the principle in Rangaiah, in as much as the Court has held that a
candidate has a right to be considered in the light of the existing rule.
That is the rule in force on the date the consideration takes place. This
enunciation is followed in many subsequent decisions including that of
Union of India v. Krishna Kumar (supra). In fact, in Krishna Kumar
Court held that there is only a "right to be considered for promotion in
accordance with rules which prevail on the date on which
consideration for promotion take place.
37. 3 The consistent findings in these fifteen decisions that Rangaiah's
case must be seen in the context of its own facts, coupled with the
declarations therein that there is no rule of universal application to the
effect that vacancies must necessarily be filled on the basis of rules
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which existed on the date which they arose, compels us to conclude
that the decision in Rangaiah is impliedly overruled. However, as there
is no declaration of law to this effect, it continues to be cited as a
precedent and this Court has been distinguishing it on some ground or
the other, as we have indicated hereinabove. For clarity and certainty,
it is, therefore, necessary for us to hold;
(a) The statement in Y. V. Rangaiah v. J. Sreenivasa Rao that, "the
vacancies which occurred prior to the amended rules would be
governed by the old rules and not by the amended rules", does not
reflect the correct proposition of law governing services under the
Union and the States under part XIV of the Constitution. It is hereby
overruled.
(b) The rights and obligations of persons serving the Union and the
States are to be sourced from the rules governing the services."
In the said judgment the Court considered the issue examining the
judgment of the Apex Court in Y.V.Rangaiah's case cited supra and
held that there is no rule of universal application to the effect that
vacancies must necessarily be filled on the basis of the law that existed
on the date when they arose and it is well within the power of the
Government to take a policy decision not to fill up a vacancy which is
arising prior to the amendment of the said Rules and that the employee
does not acquire any vested right to be considered for promotion in
accordance with the repealed Rules in view of the policy decision taken
by the Government. A Division Bench of this Court in Mehaboob P.M.'s
case cited supra has considered a similar issue in the light of the
judgment in State of Himachal Pradesh's case cited supra and held in
paragraphs 10, 13 and 14 as follows:
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"10. The learned Government Pleader as well as the learned counsel
for the petitioners in OP(KAT) 123 of 2022 submits that this dispute is
no longer res integra after the judgment of the Supreme Court in State
of Himachal Pradesh and Others (supra). After surveying all the
decisions that were considered by the Supreme Court in Y. V.
Rangaiah v. Sreenivasa Rao (1983 (3) SCC 284, which held that the
vacancies that arose when the old Rules were in force will be
governed by the old Rules, the court found the said view to be
untenable and proceeded to overrule Y. V. Rangaiah (supra). It was
found that there is no right for the employee outside the Rules
governing the service. When the subsequent Rules come and there is
no provision in the said Rules to enable any employee to be
considered as per old Rules, the matter must end there and reiterated
that the rights and obligations of the persons serving the Union and the
States are to be sourced from the Rules governing their services.
............ ........... ...........
13. It is also significant that the State had not committed itself to filling
up the existing vacancies based on the old Rules. It is trite that the
mere existence of vacancies does not confer any right on qualified
employees to seek appointment to the said vacancies. It is open to the
State to decide, as a matter of policy, that the vacancies should be
filled only in accordance with the new Rules. This is more so when we
are told that the new Rules were in a draft stage for a considerable
period of time before they finally came into force.
14. We also hold that the decision in Mohanan (supra) cannot be
taken as good law in view of the judgement of the supreme Court in
State of Himachal Pradesh and Others (supra) as the Full Bench of
this Court had relied on the judgment in Y. V. Rangaiah (supra) to
come to the conclusion that the promotion has to be on the basis of
the old rules when the vacancy fell prior to the coming into force of the
amended Rules. This cannot be accepted as the said judgment relied
on by this Court has been expressly overruled in State of Himachal
Pradesh and Others (supra)."
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Learned standing counsel for the respondent Corporation also brought
to my notice the decision of the Apex Court in Government of West
Bengal v. Dr.Amal Satpathi, 2024 KHC OnLine 8525 wherein this
Court in paragraphs 20 and 21 has held as follows:
"20. In the instant case, it is evident that while respondent No. 1
was recommended for promotion before his retirement, he could
not assume the duties of the Chief Scientific Officer. R.54(1)(a) of
the West Bengal Service Rules, clearly stipulates that an employee
must assume the responsibilities of a higher post to draw the
corresponding pay, thus, preventing posthumous or retrospective
promotions in the absence of an enabling provision.
21. While we recognize respondent No.1's right to be considered
for promotion, which is a fundamental right under Art.14 and
Art.16(1) of the Constitution of India, he does not hold an absolute
right to the promotion itself. The legal precedents discussed above
establish that promotion only becomes effective upon the
assumption of duties on the promotional post and not on the date
of occurrence of the vacancy or the date of recommendation.
Considering that respondent No. 1 superannuated before his
promotion was effectuated, he is not entitled to retrospective
financial benefits associated to the promotional post of Chief
Scientific Officer, as he did not serve in that capacity."
And on the basis of the said judgment it is the contention of the learned
standing counsel that the petitioner in W.P.(C) No.1928 of 2022 has
since retired from service cannot claim for retrospective promotion.
10. In the light of the above facts and circumstances, I am not
inclined to accept the contentions of the petitioner in W.P.(C) No.1928 of
2022 that she is entitled for promotion on the basis of the unamended
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Rules. The further contention raised by the learned counsel for the
petitioner in W.P.(C) No.1928 of 2022 is that the promotions were
delayed only to see that the Special Rules are amended in the
meanwhile so as to make the Personal Secretaries also eligible for
promotion to the post of Deputy Manager. But, I find that except for such
an assertion made in the writ petition the facts of the case does not
disclose any such intention on the part of the respondent Corporation to
delay the promotion so as to benefit the Personal Secretaries. Ext.P5 is
the interview memo which revealed that the interview is to be conducted
on 11.11.2019 and by Ext.P6 an intimation was given to the petitioner
that due to the pendency of a writ petition filed as W.P.(C) No.26260 of
2019 interview is adjourned for an another date. Going by the counter
affidavit filed on behalf of respondents 2 and 3 it is seen that though the
staff pattern was approved by the respondent Corporation as early as
on 20.07.2019, there were certain anomalies in the draft Rules framed
for recruitment and promotion of officers and in order to rectify the
anomalies the Government as per letter dated 29.11.2019, ie, only a few
days after Ext.P5 interview memo was issued to the petitioner, has
directed the respondent Corporation to conduct a study through the
Institute of Management in Government and they were entrusted with
the same and a report was submitted and the recommendations of the
sub-committee was approved by the Board and as per the proposal of
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the respondent Corporation for promotion to the post of Deputy Manager
(HR) a ratio at 1:1 was fixed between Assistant Manager as well as
Personal Secretary in G9. This itself will show that the Management had
no intention to exclude the Assistant Manager (HR) from the zone of
consideration for promotion to the post of Deputy Manager. But the said
ratio fixed by the Corporation was not accepted by the KPSC and based
on the recommendation the Government directed the respondent
Corporation to amend the Rules and accepting the said objection raised
by the KPSC the Board resolved to finalise the Special Rules on
10.07.2021, which was approved by the Government as per Ext.P7
dated 30.07.2021. Therefore the said contention that it is only to help
the Personal Secretaries to get a chance for promotion that the
promotions were delayed cannot be accepted. Going by Ext.P1 Special
Rules the promotion to the post of Assistant Manager onwards are to be
based on weightage taking into consideration seniority, performance
rating (average for the last three years) and interview and that a select
list is to be prepared by a committee and based on the same the
Managing Director has to effect promotions. A perusal of Ext.P5 would
reveal that the petitioner has participated in the process of selection and
was assigned rank No.4. I find considerable force in the contention
raised by the respondent Corporation on the basis of Ext.R2(a) that no
employee has any right for promotion to any post solely on the ground
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of seniority itself and that it is for the employer to decide the essential
qualifications for appointment to a post. The counter affidavit also states
that it was also with a view to grant promotional avenues to Personal
Secretaries who under the previous Rules could not be promoted
beyond G9 level that they were also considered as a feeder category to
the post of Deputy Manager. Admittedly the petitioner had participated
in the process and could not secure a higher rank which disentitled her
for getting promotion to the post of Deputy Manager. The promotion
policy provided equal opportunity to officers falling within the zone of
consideration and petitioner was considered and therefore she cannot
contend that the policy is discriminatory. As earlier stated, as per the
judgment of the Apex Court in State of Himachal Pradesh's case cited
supra the employee cannot claim that the vacancies which arose prior to
the amendment of the Special Rules are to be filled up as per the
provisions of the unamended Rules. Taking all these aspects into
consideration I find no reason to interfere with the selection made based
on the Special Rules now in force. In the light of the above, I am not
inclined to interfere with the orders impugned herein.
It is brought to my notice that the respondent Corporation has
already as per communication dated 22.08.2024 addressed the
Principal Secretary to the Government that the modification of the
proposal of the management to give promotion in the ratio of 1:1 is
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creating serious prejudice to the Corporation and that the petitioner in
W.P.(C) No.26432 of 2022 has submitted a complaint in this regard and
has requested the Government to bringing in the ratio of 1:1 already
proposed by the Corporation and a reply has been given by the
Government dated 25.09.2024 intimating that the request of the
Corporation will be considered after the disposal of the writ petition filed
as W.P.(C) No.26432 of 2022. In the light of the disposal of these writ
petitions, it is for the 1 st respondent Government to take an appropriate
decision on the request made by the respondent Corporation dated
22.08.2024 seeking amendment to the Special Rules in accordance with
law.
With the abovesaid observations the above writ petitions are
dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
2025:KER:30731
APPENDIX OF WP(C) 1928/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE RECRUITMENT AND PROMOTION
RULES FOR MANAGERIAL AND SUPERVISORY
EMPLOYEES UNDER THE KAMC EMPLOYEES STAFF
BYELOWS 1973
Exhibit P2 TRUE COPY OF THE INFORMATION GIVEN TO ONE
SMT. PREETHA P MENON UNDER THE RIGHT TO
INFORMATION ACT DATED 23.5.2018
Exhibit P3 TRUE COPY OF THE INFORMATION GIVEN TO SMT.
PREETHA P. MENON UNDER THE RIGHT TO
INFORMATION ACT DATED 15.7.2019
Exhibit P4 TRUE COPY OF THE G.O.(MS) NO.96/2019/AGRI
DATED 20.7.2019
Exhibit P5 TRUE COPY OF THE MEMO DATED 11.11.2019
ISSUED BY THE DEPUTY GENERAL MANAGER (HR)
TO THE PETITIONER
Exhibit P6 TRUE COPY OF THE LETTER DATED 18.11.2019
ISSUED BY THE DEPUTY GENERAL MANAGER (HR)
TO THE PETITIONER
Exhibit P7 TRUE COPY OF THE G.O.(MS) NO.68/2021/AGRI
DATED 30.7.2021
Exhibit P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE
AMENDED RULES OF THE KERALA AGRO MACHINERY
CORPORATION LTD.
Exhibit P9 TRUE COPY OF THE INTERVIEW MEMO DATED
11.1.2022 ISSUED BY THE DEPUTY MANGER (HR)
TO THE PETITIONER.
RESPONDENT EXHIBITS
Exhibit R6 a TRUE COPY OF THE LIST PUBLISHED BY THE 2ND
RESPONDENT FROM ELIGIBLE ASSISTANT MANGER
HR/PERSONAL SECRETARY ON THE BASIS OF
ORIGINAL SENIORITY AT GRADE 9
2025:KER:30731
APPENDIX OF WP(C) 26432/2022
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF 1973 RULES (THE SPECIAL
RULES FOR RECRUITMENT AND PROMOTION OF
MANAGERIAL AND SUPERVISORY EMPLOYEES
UNDER THE KAMC EMPLOYEES STAFF BYE
LAWS, 1973).
EXHIBIT P2 :- TRUE COPY OF REPRESENTATION
SUBMITTED BY THE PETITIONER AND OTHERS
BEFORE THE CHAIRMAN, KAMCO ON
14.11.2017.
EXHIBIT P3 TRUE COPY OF THE RELEVANT EXTRACT OF
THE RECOMMENDED AMENDMENTS IN THE
MEETING HELD ON 18.6.2021.
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER NO.
68/2021/ AGRICULTURE DT. 30.7.2021
ALONG WITH THE APPROVED RULES.
EXHIBIT P5 TRUE COPY OF THE SELECT LIST
DT.22.1.2022
EXHIBIT P6 TRUE COPY OF ORDER OF PROMOTION
DT.20.7.2022 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P7 TRUE COPY OF ORDER DATED 29.7.2022
ISSUED BY THE 2ND RESPONDENT
RESPONDENT EXHIBITS
Exhibit R2(a) True copy of the staff bye-laws of the
2nd resondent company
Exhibit R2(b) True copy of the order dated 20.07.2019
issued by the Agriculture (PU)
Department, Govt. of Kerala
Exhibit R2(c) True copy of the communication dated
29.11.2019 from the Under secretary,
Govt. of Kerala to the 3rd respondent
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Exhibit R2(d) true copy of the communication dated
30.01.2021 from the 2nd respondent
company to the principal secretary,
Agricultural Department
Exhibit R2(e) True copy of the communication dated
07.07.2021 issued by the Additional
Secretary, govt. of India to the 3rd
Respondent
Exhibit R2(f) True copy of the communication sent
from the 2nd respondent dated
12.07.2021 to the agriculture
department, Govt. of kerala
