(Prayer: Writ Appeal under Clause XV of the Letters Patent to set aside the order dated 07.11.2023 passed in W.P.No.23309 of 2021.)

S.M. Subramaniam, J.

1. The present appeal has been instituted by the writ petitioner challenging the writ order dated 07.11.2023 passed in W.P.No.20030 of 2021.

2. The appellant is holding the post of Assistant Scientific Officer in Indian Medicine and Health Department in Drug Testing Laboratory at Chennai. The appellant had sent a representation to the respondents to consider her for appointment to the post of Government Analyst (Indian Medicine) in the Drug Testing Laboratory. Since there was no reply, a writ petition in W.P.No.2588 of 2021 was filed seeking a direction to consider her representation. This Court directed the authorities to consider the representation. The authorities considered the representation and passed an order of rejection vide order dated 06.05.2021 stating as follows :

                   “ 4. After careful consideration of individual (viz., Tmt.M.Saravana Priya) representation dated 27.10.2020 and 07.01.2021 and as per the Drugs and Cosmetics Act, 1940 and Rules 1945, it is informed that,

                   i) The post of Government Analyst was sanctioned during 2017 and the adhoc rules for the post are yet to be framed.

                   ii) The State Drug Testing Laboratory is to be headed by the Government Analyst to maintain quality of drugs supplied to the public.

                   iii) It is a Quasi Judiciary Post governed by the Drugs and Cosmetics Act, 1940.

                   iv) As per the Schedule T, Quality Control Laboratory should be headed by Siddha / Ayurveda / Unani doctors only.

                   v) Rule 160 B of Drugs and Cosmetics Rules, 1945 deals with the condition for granting / renewal of approval of Ayurvedic, Siddha and Unani Drugs Testing Laboratory (IM) and in sub rule (b) (i) expert in Ayurveda/Siddha/Unani medicine who possesses a degree qualification recognized under Schedule II of Indian Medicine Central Council Act, 1970.

                   vi) Rule 44 of Drugs and Cosmetics Act, 1940 and Rules, 1945 are prescribed for Government Analyst post in the Allopathy Drug Testing Laboratory only.

                   Vii) As per the Act, the Government is empowered to notify the qualified person as Government Analyst.

                   5. Hence Tmt.M.Saravana Priya, Assistant Scientific Officer possesses M.Sc (Microbiology), M.Phil.Biotechnology Degrees and does not fulfill the prescribed qualification as per the Rules in 33F, 160B, 165 and Schedule T of Drugs and Cosmetics Act 1940 and Rule 1945.”

Citing the above rule position, the request of the appellant to consider her for appointment to the post of Government Analyst was rejected.

3. Learned counsel for the appellant would mainly contend that Rule 44 of the Drug Rules 1945 in clear terms stipulated that, " a person having the qualification of Science is also eligible for appointment to the post of Government Analyst. Therefore, the decision of the authorities that the person possession the qualification in Medicine alone is eligible is incorrect. He drew the attention of this Court with reference to Rule 44 and Rule 165, wherein also Rule 44 has been referred.

4. Learned Additional Government Pleader would oppose by stating that Rule 165 clearly states that the Rule is to be applied in the context of two circumstances; one for the post of Government Analyst (Indian Medicine) and another for the post of Government Analyst (Allopathy). Since these two wings are different, the qualification prescribed under the Rules are to be understood in the context of the nature of the duties and responsibilities attached to the posts. In this regard, the learned Additional Government Pleader would submit that Rule 65 indicates the term “as the case may be”. Therefore, the Rule is to be applied in the context of the post to be filled up and in the present case admittedly the appellant is possessing the qualification of M.Sc (Microbiology) which is a Science subject and not Medicine subject. Thus, her request was rejected.

5. This Court considered the rival submissions made between the parties to the lis.

6. Let us now consider the right of the appellant at the first instance. Governing legal principles for promotion are settled. Promotion / appointment per se cannot be claimed as a vested right. All promotions / appointments are to be made strictly in accordance with the Rules applicable. However, consideration of promotion is the right of an employee. Consideration would arise only if administrative decision is taken to fill up the post, in the present case, the post of Government Analyst. If administrative decision is taken by the competent authority to fill up the post, then the names of eligible employees working in the feeder category or eligible category are to be considered for inclusion of their names in the panel and thereafter promotions / appointments are to be granted. An employee submitting a representation and seeking appointment / promotion to a particular post is not maintainable. Since promotion / appointment is not a vested right, the case of the appellant for appointment for the post of Government analyst is not maintainable. However, the writ Court directed the authorities to consider the representation, which provided a cause for the appellant to institute a writ petition challenging the said order.

7. This exactly is the practice now developed. Writ petitions are filed seeking a direction to consider the representation even before establishing the right. Once a direction is issued, the authorities are bound to pass an order and the said order is providing a further cause of action to institute another round of litigation. Any person approaching the court seeking a direction to consider the representation, at the first instance, has to establish a right for seeking such direction. In the absence of any legal right, no such writ petition seeking direction to consider the representation is maintainable. This being the basic rule, entertaining a writ petition under Article 226 of the Constitution of India indiscriminately entertaining a writ petition seeking a direction to consider the representation would do no service to the cause of justice, but the litigants are back again to the Court by filing another writ petition.

8. In the present case, the appellant seeks a direction to consider her representation for appointment / promotion and such a representation is not maintainable. Regarding the qualification, though this Court has deliberated that the posts of Government Analyst (Indian Medicine) and Government Analyst (Allopathy) are different, the posts are to be filled up only by qualified persons. However, filling up of the post is the prerogative of the competent authorities and the Courts need not direct them to fill up the post by promotion / appointment.

9. Regarding the interpretation made by the learned counsel for the appellant, this Court is of the considered view that the Rule is to be considered in the context of the post viz., Government Analyst (Indian Medicine) and Government Analyst (Allopathy). However, it is made clear that when an administrative decision is taken to fill up the post of Government Analyst, the competent authorities are bound to comply the rules carefully and appoint eligible persons, since the job responsibility is onerous and relatable to various diseases and public interest. Therefore, the post of Government Analyst is an important post and thus, qualified persons alone are to be appointed.

10. That being the factum, this Court is of the considered view of the decision arrived at by the writ Court need be interfered. The writ appeal stands dismissed. No costs.