IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).No. 14234 of 2009(Y) ------------------------ PETITIONER : --------------- M.R.PRADEEP, ASSISTANT DRUGS CONTROLLER, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, THIRUVANANTHAPURAM-35. RESIDING AT: PULIMOOTTIL HOUSE, SOUTH MARADY P.O., MUVATTUPUZHA- 686 673. BY ADVS. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN SMT.LEENA MURALI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DRUGS CONTROLLER, KERALA STATE, RED CROSS ROAD, THIRUVANANTHAPURAM. 3. RAVI.S.MENON, ASSISTANT DRUGS CONTROLLER, CIVIL STATION, KAKKANAD. R1 & R2 BY GOVERNMENT PLEADER SRI. K. SANILKUMAR R3 BY ADVS. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.T.MANASY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 14234 of 2009(Y) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE G.O.(P) NO.95/2009/H&FWD DATED 31-03-2009. EXT.P2 : PHOTOCOPY OF THE REPRESENTATION DATED 31-03-2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3 : PHOTOCOPY OF THE PROCEEDINGS NO.E3.9294.2008.DC DATED 14-05- 2009 OF THE 2ND RESPONDENT. EXT.P3(a) : PHOTOCOPY OF G.O.(RT)NO. 1287/2009/H&FWD DATED 14-05-2009. EXT.P4 : PHOTOCOPY OF THE REPRESENTATION DATED 15-05-2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5 : PHOTOCOPY OF THE DISTRIBUTION REGISTER MAINTAINED IN THE OFFICE OF THE 2ND RESPONDENT. EXT.P6 : PHOTOCOPY OF THE PARTNERSHIP DEED DATED 21-03-2008 CONSTITUTING THE PARTNERSHIP. EXT.P7 : PHOTOCOPY OF THE LETTER NO. 10413/F1/09/H&FWD DATED 29-04-2009 OF THE 1ST RESPONDENT FORWARDING THE COMPLAINT TO THE 2ND RESPONDENT. EXT.P8 : PHOTOCOPY OF THE ENQUIRY REPORT DATED NIL OF THE DEPUTY DRUGS CONTROLLER, THIRUVANANTHAPURAM. EXT.P9 : PHOTOCOPY OF THE DEED OF DISSOLUTION DATED 03-03-2009. EXT.P10 : PHOTOCOPY OF THE STATUTORY DECLARATION DATED 28-03-2009. EXT.P11 : PHOTOCOPY OF THE DEED OF PARTNERSHIP OF KAIRALI ENTERPRISES DATED 01-04-1998. RESPONDENT'S EXHIBITS: EXT.R3(a) : PHOTOCOPY OF THE NOTIFICATION G.O.(P)NO.104/08/H &FWD DATED 08- 04-2008 PUBLISHED IN THE KERALA GAZETTE (EXTRA-ORDINARY) DATED 18-04-2008 OF THE 1ST RESPONDENT. ...3/- WP(C).No. 14234 of 2009(Y) -3- EXT.R3(b) : PHOTOCOPY OF THE G.O.(RT)NO.485/2009/H &FWD DATED 20-02-2009 OF THE 1ST RESPONDENT. EXT.R3(c) : PHOTOCOPY OF THE REPRESENTATION DATED 25-03-2009 SUBMITTED TO THE 1ST RESPONDENT. EXT.R3(d) : PHOTOCOPY OF THE REPORT OF TRANSFER OF CHARGE DATED 15-05-2009. EXT.R3(e) : PHOTOCOPY OF THE PROCEEDINGS OF THE DRUGS CONTROLLER NO. E1.21350/89/DC 23-02-1991. //TRUE COPY// P.A. TO JUDGE Mn T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.14234 Of 2009 ----------------------------------------------------- DATED THIS THE 26th DAY OF OCTOBER, 2010 J U D G M E N T The challenge is against Exhibit P3 order whereby the 3rd respondent is transferred and posted as Assistant Drugs Controller in Ernakulam in an existing vacancy. 2. The petitioner has been included in the select list published as per Exhibit P1 for promotion to the post of Assistant Drugs Controller. Exhibit P1 is dated 31.3.2009. One Shri M.D.Gopalan , Assistant Drugs Controller, Ernakulam, retired from service on 31.3.2009 and a consequent vacancy arose at Ernakulam. It is the case of the petitioner that on coming to know of the vacancy, he filed a representation as per Exhibit P2. But, ignoring the petitioner's claim, the 3rd respondent has been transferred to fill up the vacancy at Ernakulam. 3. The petitioner also alleges, in the Writ Petition, that the 3rd respondent has some interest in the family business at Ernakulam and he had been working in Ernakulam for a number of years and his transfer was ordered ignoring the fact that some enquiries were going on against him for his alleged involvement W.P.(C)No. 14234/09 -2- in the family business. 4. Heard the learned Senior Counsel Shri N.Nandakumara Menon, appearing for the petitioner, the learned Senior Counsel Shri O.V.Radhakrishnan appearing for the 3rd respondent and the learned Government Pleader. 5. The third respondent in the counter affidavit, has denied the allegations raised against him. It is further pointed out by the learned Senior Counsel for the 3rd respondent that as on the date on which the order of transfer was issued, the 3rd respondent was already working in the promoted post. But, so far as the petitioner is concerned, he was only awaiting promotion and therefore, he cannot lay any claim for the vacancy which arose at Ernakulam on 31.3.2009. The 3rd respondent duly submitted a representation anticipating the retirement vacancy and therefore it is contended that the petitioner who was awaiting promotion had to move to the station wherein a vacancy may occur as he cannot have a claim for any particular vacancy. It is further contended that inclusion in the select list will not confer any indefeasible right unless and until Government acts upon it and promotes a person. W.P.(C)No. 14234/09 -3- 6. The petitioner has already moved the Government as per Exhibit P4 representation. It is pointed out in the counter affidavit filed by the 1st respondent that the representation has been received on 18.5.2009 and the petitioner immediately approached this Court by filing this Writ Petition. 7. Even though arguments have been raised with regard to the alleged interest of the 3rd respondent in the family business - which is stoutly opposed by the 3rd respondent - I am not going into the merits of the said allegation. Evidently, the order of transfer is dated 14.5.2009 and the order has been implemented also. Therefore, the claim of the petitioner will arise only during the next general transfer. 8. In that view of the matter, there will be a direction to the Government to consider Exhibit P4 representation with notice to the petitioner and the 3rd respondent and appropriate decision will be taken within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn