The necessity of making rules for created posts and the exercise of power in accordance with the law.

Headnote:
mandamus - promotion to the post of Deputy Drugs Controller, Ayurveda - Drugs and Cosmetics Act, 1940 - Section 33P, Section 33T - The court discussed the appointment and promotion process in the Drugs Control Department, emphasizing the need for rules to govern appointments and promotions. The court highlighted the arbitrariness of making appointments without rules and stressed the importance of exercising power in accordance with the law. The judgment emphasized the necessity of making rules for the created posts and directed the State of Kerala to make rules and appoint a suitable person to the post within a specified timeframe.
Fact of the Case:

The petitioner sought a writ of mandamus to direct the promotion to the post of Deputy Drugs Controller, Ayurveda and to restrain the appointment of any other person to that post. The petitioner contended that he was fully qualified and experienced for the promotion.
Finding of the Court:

The court found that the appointment and promotion process lacked governing rules, leading to arbitrary exercises of power. It directed the State of Kerala to make rules and appoint a suitable person to the post within a specified timeframe.
Issues: Appointment and promotion process without governing rules, qualification and experience for promotion, provisional appointment of the 3rd respondent.
Ratio Decidendi: The exercise of power must be in accordance with the law, appointments should not be made without rules, and the necessity of making rules for created posts.
Final Decision: The Original petition was allowed, directing the State of Kerala to make rules and appoint a suitable person to the post within a specified timeframe. No costs were awarded.

Judgment :-

1. This is a petition for a writ of mandamus to direct respondents 1 and 2 to promote the petitioner to the post of Deputy Drugs Controller, Ayurveda in the Drugs Control Department and to restrain respondents 1 and 2 from appointing any other person either by deputation or otherwise to that post. In C.M.P. No. 17816 of 1982 this Court passed an interim order on 20-8-1982 as follows:

"Urgent notice and interim stay for a month. Hand over the order." On 15-9-1982 this Court made a further order in the following words:

"Heard the counsel for the petitioner and the counsel for the 3rd counter-petitioner. It is submitted by the counsel for the 3rd counter-petitioner that before the stay order was issued by this Court, on 18-8-'82 the 3rd counter-petitioner was actually appointed. It is submitted by the petitioner's counsel that the 3rd counter-petitioner has not so far taken charge.

In the facts and circumstances of this case, the stay is vacated. But it is made clear that the appointment will be provisional and subject to the result of the O.P. Post O.P. for hearing on 30-9-82.

Hand over the order to the counsel for the 3rd counter-petitioner."

In the light of the subsequent order the 3rd respondent is now functioning as the Deputy Drugs Controller provisionally and on deputation from his parent department of Ayurveda College.

2. The petitioner was appointed as Drugs Inspector provisionally on 5-2-1977 although his appointment had been advised by the Public Service Commission as early as 22-12-1976. His appointment was made provisional for the reason that O.P. No. 3180 of 1976 was at that time pending in this Court. Subsequently with effect from 14-2-1977 the petitioner's appointment as Drugs Inspector was regularised by Ext. PI order dated 5-2-1977. There are two wings in the Drugs Control Department. They are the Allopathy Wing and the Ayurveda Wing. The petitioner contends that he is fully qualified and has the requisite experience for promotion to the next higher post of Assistant Drugs Controller in the Ayurveda Wing to which he belongs. That the petitioner is fully qualified for promotion is not disputed by the respondents. But it is stated by the Government in their counter affidavit that the petitioner does not possess the requisite experience for promotion.

3. By Ext. P3 the post of Assistant Drugs Controller was upgraded as Deputy Drugs Controller on a higher scale of Rs. 975-1625. Ext. P3 refers to the post of Deputy Drugs Controller as upgraded and the lower post of Drugs Inspector which is on a scale of Rs. 570-1070.

4. After the upgradation of the post of Assistant Drugs Controller as Deputy Drugs Controller one Dr. Chakrapani Warrier was appointed to that post by deputation from the Ayurveda College where he was working as a professor. It was when Dr. Warrier was about to be reverted at his own request that the petitioner apprehended that the 3rd respondent was likely to be appointed to that post by bringing him on deputation from the Ayurveda College. It was then that the petitioner approached this Court. As I have stated earlier the 3rd respondent was appointed as Deputy Drugs Controller provisionally.

5. The contention of the petitioner is that there is no need to appoint any person provisionally by bringing him from outside when fully qualified persons are already available within the Department. The petitioner contends that he has the necessary qualification and experience for promotion to the next higher post of Deputy Drugs Controller. His contention is that he should either be appointed as Deputy Drugs Controller or that the post should be down graded as that of Assistant Drugs Controller and the petitioner should be appointed to that post.

6. It is stated by the Government in their counter-affidavit that no rules have been so far framed in regard to the post of either Assistant Drugs Controller (Ayurveda) as it then existed or in regard to the upgraded post of Deputy Drugs Controller (Ayurveda). No speci

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