JUDGMENT
K. Balakrishnan Nair, J.
1. The petitioners are Armed Police Inspectors of Kerala Armed Police Ist Battalion, Thrissur. They have approached this Court challenging Ext. P6 order of the Government whereunder their claim for retrospective promotion to the post of Havildar has been rejected. The brief facts necessary for the disposal of the case are the following:
2. Kerala Armed Police Battalion I (KAPI) and Kerala Armed Police Battalion (KAPII) were formed as per the Government Orders dated 17.11.1972 and 6.10.1976. Prior to 17.11.1972, there were two Armed Police Battalion,s namely MSP and SAP. The non-gazetted posts in the MSP were governed by the Special Rules for MSP Subordinate Service and those in the SAP were governed by various executive orders. KAPI and II Battalions were separate units for the purpose of seniority and promotion. MSP and SAP were also separate units for the above said purpose. While so, the Government issued Special Rules on 18.1.1984 treating all the Police Battalions as a common unit for the purpose of seniority, transfer and promotion. As per Rule 6(a) of the Special Rules, the Constables recruited to KAPI and II on merger with the common unit were entitled to count their seniority with effect from the date of appointment as Police Constable. Similarly, Constables promoted as Havildars were also entitled to reckon their seniority from the date of promotion as Havildar. Since the Rules were given only prospective operation from 18.1.1984, the persons like the petitioners who were in the KAP I could claim promotion only in those vacancies that arose after 18.1.1984 in other consistent units.
3. The petitioners joined KAP Battalion I on 28.3.1973 as Police Constables and they completed their probation on 17.11.1975. They were promoted as Naiks on 20.8.1977 and thereafter they were promoted as Havildars on 30.8.1978.
4. The persons appointed in MSP and SAP and who got promotion as Havildars in 1979 were considered by the Departmental Promotion Board held in 1982 for promotion to the post of APASI (Armed Police Assistant Sub Inspector). Though the petitioners have longer service, they were considered by the Departmental Promotion Board for promotion as APASI only in 1985. This is the grievance highlighted by the petitioners in the Original Petition. Till the issuance of the Special Rules on 18.1.1984, there were no Rules or Orders in KAP I which is a separate unit providing for appointment to the post of APASI. Therefore, they were not considered for promotion. On the contrary, in MSP and SAP there were Rules or Orders prescribing the qualification and method of appointment to the post of APASI and therefore they were promoted to those posts in 1982.
5. The petitioners’ claim that their juniors were promoted in 1982 and though they were seniors, they were not considered, is plainly untenable. In 1982, MSP and SAP were separate units and therefore there is no question of any interse seniority between the petitioners and those in MSP or SAP. They joined the common pool only on 18.1.1984 and they do not have a case that in any vacancy that arose after the said date they were not considered for the promotion as APASI or were superseded by juniors. Since the petitioners belong to a different unit, they could not be considered for promotion to the vacancies of ASI that arose in MSP or SAP in 1982.
6. The petitioners had approached this Court earlier and this Court in Ext. P3 judgment had held as follows:
“It would appear that the anomaly has happened for the reason that though the Special Rules made in 1984 (Ext. P4) gives retrospective operation in respect of the categories 1, 1A and 2, the same retrospective effect has not been given tot he lower posts. So far as the anomaly continues in the Rules, the 2nd or 3rd respondent cannot make any promotion on the basis of the services prior to the making of the rules. As the matter now stands, the petitioners cannot get any relief.”
7. I am in respectful agreement with the said observation. That judgment has become final and the petitioners are bound by that. If only the Special Rules are given retrospective effect and the petitioners are made part of the integrated unit before the meeting of the Departmental Promotion Board in 1982, they can claim promotions to the vacancies that arose in MSP or SAP in 1980. This court directed the petitioners to file a representation before the Government praying to make rectification in the Special Rules to redress their grievance. Pursuant thereto, they filed Exts. P4 and P5. The Government rejected the claim of the petitioners by Ext. P6. in the impugned order, the Government have found that the petitioners could not be considered for the 1982 vacancies of ASI as the select lists then were prepared only for the MSP and SAP. The petitioners can claim promotion to those vacancies if only the Special Rules are amended worth retrospective effect at least from 31.3.1982 which is the crucial date for inclusion in the select list for that year. But the Government found that if an amendment is brought about to help the petitioners, it will affect several others and will have the effect of unsettling settled seniority. On these grounds, the petitioners’ claim was rejected.
8. The petitioners challenge Ext. P6 on various grounds. It is also prayed that there may be a direction to include them in the 1982 select list prepared by the Departmental Promotion Board or int eh alternative it is prayed that this Court may issue a mandamus to give retrospective effect to the Special Rules for Kerala Armed Police Subordinate Service at least from 31.3.1982.
9. I head the learned counsel for the petitioners, Shri. Abraham Vakkanal. He reiterated the contentions raised in the Original Petition. But the fact remains that unless the Special Rules are given retrospective effect, the petitioners cannot get any relief. Amending the Special Rules to give it retrospective effect, is a legislative function. It is a well settled position in law that this Court cannot direct the Legislature to frame a legislation by issuing a writ of mandamus. Writ of mandamus is a high prerogative writ which is normally used to compel the performance of a public duty on an application made by one who has got a legal right to the performance of that duty by the concerned public authority. In Halsbury’s Laws of England (4th Edition, Vol. I, paragraph 89) it is stated that the object of mandamus is”:
“to remedy defects justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific right and no specific legal remedy for enforcing that right; and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
Our Supreme Court in Praga Tools Corporation v. Immanual (AIR 1969 SC 1306) has observed:
…..”The condition precedent for the issue of mandamus is that their is in one claiming it a legal right to the performance of a legal duty by one against who it is sought.”
Again the Supreme Court in State of Kerala v. Lekshmikutty (1986 (4) SCC 632) reiterated:
“It is well settled that a writ of mandamus is not a writ of course or a a writ of right, but is as a rule discretionary. There must be a judicially enforceable right for the enforcement of which, a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the performance of statutory duties by public bodies on an application of a person who can show that he has himself a legal right to insist on such performance……The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus.”
10. The Legislature does not ow any duty to anyone to frame any legislation. Correspondingly, no one can claim any legal right to the performance of the duty of framing a legislation by the Legislature. Therefore, no one has a right to claim a writ of mandamus against the Legislature. Further, issuance of any writ against the Legislature to frame a Legislation will be a futile writ as there is no means to enforce the same if the Legislature disobeys it. In view of the immunities and privileges of the Legislature and its members, any command to the Legislature can never be enforced. This Court will not issue any futile writ. The above said general principle will apply in the matter of framing subordinate legislation also by the delegate of the Legislature. The apex court in Narinder v. Union Territory of Himachal Pradesh (AIR 1971 SC 2399) has stated as follows:
“The power to impose a tax is undoubtedly a legislative power…..Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact.”
This principle has been reiterated by the Supreme Court in a number of decisions.
11. The power to frame Special Rules is undoubtedly a legislative power conferred on the State Government as the delegate of the Legislature under Section 2(1) of the Kerala Public Service Act. So, in the light of the above stated principle, this Court cannot direct the Government to give retrospective effect to the Rules in question by making suitable amendment.
12. Therefore, the Original Petition lacks merits and the same is accordingly dismissed (SIC) limine.