S.S. Chadha, J.
(1) C.W.P. 1404183 under Article 226 of the Constitution of India challenges the act of the respondents in filling up the post of Director of Logistics Support in the Naval Headquarters from amongst the Service Officers of the Indian. Navy instead of from amongst the eligible Civilian Officers of Naval Stores Organisation under the Navy (Civilian Gazetted Stores Officers Posts) Recruitment Rules, 1979. Subsequent to the filling of the said petition the Government appointed Commodore Vasant Ganapath Rao, Hannovar as Director of Logistics Support. C.W.P. 2212/83 was then filed by the petitioners praying for a writ of quo-warranto against the respondents to show under what authority respondent No. 4 could be anointed to the post of Director of Logistics Support. This order will dispose of these two petitions.
(2) In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Navy (Class I Gazetted Posts) Recruitment Rules, 1969, in so far as they relate to the posts of Director of Logistics Support, Joint Director, Navy Stores Organisation, Senior Naval Store Officer and Naval Store Officer and the Navy (Class Ii Gazetted Posts) Recruitment Rules, 1969, in so far as they relate to the post of Assistant Naval Store Officer, the President, by notification dated October 27, 1979 published in the Gazette of India dated November 10, 1979, made the rules regulating the method of recruitment in certain Civilian Gazetted Naval Stores Officers Posts in the Navy. These rules are called the 'Navy (Civilian Gazetted Stores Officers Posts) Recruitment Rules, 1979' (hereinafter referred to as the Rules). The Rules apply to the posts specified in column No. I of the Schedule annexed to the Rules. The number of posts, their qualifications and scales of pay attached thereto are so specified in columns 2 to 4 of the Schedule annexed. The method of recruitment, age limit, qualifications and other matters relating to the said posts are as specified in columns 5 to 13 of the Schedule aforesaid. Against the post of Director of Logistics Support, under column No. 2-'number of posts', it is mentioned as '1'. The classification is General Central Service, Group 'A' Gazetted and Non- Ministerial. It is a Selection post. The post is to be filled in by the method of promotion. The promotion is of a Joint Director Naval Stores Organisation with three years service in the grade rendered after appointment thereto on a. regular basis. The Selection for promotion has to be made by Group 'A' Departmental Promotion Committee consisting of (1) Upsc Chairman) Member-Chairman; (2) Joint Secretary (Navy), Ministry of Defense-Member and (3) Assistant Chief of Personnel Naval Headquarters-Member.
(3) The submission of Mr. P. P. Rao, the learned counsel for the petitioners is that the statutory recruitment Rules which have the force of an Act of Parliament, have laid down the only method of recruitment to one post of Director of Logistics Support as promotion on the basis of Selection made by a D.P.C. and also indicated the source of recruitment for promotion of Joint Director Naval Stores Organisation with three years service in the grade rendered after appointment thereto on a regular basis. The power given under a statute or Rules having the force of law ought to be exercised in the manner provided therein or not at all. All other methods of appointment are necessarily forbidden. Respondent No. 4 not being a Joint Director, Naval Stores Organisation, was not eligible to be considered for promotion to the post of the Director of Logistics Support. He did not possess the requisite qualifications for appointment even to the post of Joint Director, which is the only feeder post from which the promotion could be made. The contention is that it is not open to the Executive to appoint a Service Officer to a civilian post in General Central Service Group 'A' Gazetted and Non-Ministerial in violation of the provisions of the Rules.
(4) Another submission is that the order of the Government dated February 28, 1980 and the subsequent orders dated March 4, 1982 and March 3, 1983 which purported to make the post of Director of Logistics Support tenable either-by a Service Officer or by a Civilian Officer is ex-facie ultra-vires the Rules. The executive sanction indicating that the post of Director of Logistics Support may be held either by a Captain or a Civilian is urged as ultra-vires the Rules to the extent when they permit a Captain to hold the post. The submission in the nut shell is that the administrative sanction cannot prevail over the Rules which are statutory with the result that they do not provide any authority in the eye of law for the impugned appointment of Commodore Vasant Ganapath Hannovar. Reference is made to the settled law that it is open to the Government to regulate methods relating to conditions of service by means of, administrative instructions, so long as the statutory rules had not been made. These instructions, however, cannot supersede or amend those rules. If the administrative instructions have the effect of altering the conditions of service' notified under the Rules framed in exercise of the powers under proviso to Article 309 of the Constitution, then the instructions are bad and of no effect.
(5) Justification in detail b provided in the counter affidavit to make the post of Director of Logistics Support stroke appointment tenable by a Service Officer or a Civilian Officer according to suitability to be adjudged by Naval Headquarters. Briefly the plea js that the post of Director of Logistics Support is a pivotal and a sensitive post in the Logistic function of the Navy at Naval Headquarters. The incumbent is functionally responsible for policy, planning, provisioning, procurement, maintenance, supply and inventory management of spares and stores. He is also responsible for the planning and establishment of Naval Stores Depots for augmenting ashore Logistic Support for the expanding needs of the Indian Navy. It is averred that right from the time that the post of Director of Logistics Support was created, it has been held by a Service Officer of the rank of Captain and above with the approval of the Government. Considering the complex tasks involved, well merited Service Officer, more responsive to the user needs has been considered suitable by the Government for appointment to the post this time and that is permissible. The respondents have placed on record the copies of Government letters sanctioning the complement at Naval Headquarters. The letter dated April 23, 1975 conveys the sanction of the President to the continuance of the complement (both Service and Civilian) at Naval Headquarters as detailed in Annexures to the letter. The service complement is to form part of the stabilized cadre of the Indian Navy except Where otherwise stated. Sanction for the civilian complement under this letter was to remain operative for a further period from March 1, 1975 to February 1977 except where otherwise indicated. Against one post of Director of Logistics Support, in the remarks column it is stated :-
'This may be held either by a Captain (E/L/S) or a Civilian. For the period it is held by a Service Officer it will form part of the stabilized cadre of the Indian Navy and for the period it is held by a Civilian it will not count against the stabilized cadre of the Indian Navy but would form part of the permanent strength of civilian officers. With every change in the incumbency of the post Selection for the post will be made from among the suitable Service Officers and Civilians.'
The sanction of the President to the continuance of the complement is granted by. letter dated April 21, 1977 for three years, by letter dated February 28, 1980 for two years, by letter dated March 4,1982 for one year, by letter dated March 3, 1983 for one year and by letter dated April 23, 1984 by another one year. The extension of sanction is now for a period up to February 28, 1985. The remarks column of the each subsequent sanction, letter similarly contains the identical words,
(6) The submission of Mr. M. C. Bhandare, the learned counsel for the respondents is that the Rules prescribing the mode of appointment by promotion to the post of Director of Logistics Support is relevant only when the post is to be filled in by a Civilian Officer. In terms of Government sanction, once it is decided to appoint a Naval Officer, the Rules are not attracted. The Government's letters making the appointment of Director of Logistics Support tenable by a Service Officer also have been issued in the name of the President of India, after a decision has been taken at the highest level in the Ministry of defense. The contention is that the President in exercise of his Executive, power under Article 53 read with Article 73 of the Constitution is free to create posts and also lay down the manner in which it is to be filled, i.e., tenable by a Naval Officer or a Civilian Officer. Reliance is placed on 'Katyani Dayal and others v. Union of India and others', : 3SCR139 , wherein it was held :-
'ARTICLE 53 of the Constitution vests the executive power. of the Union in President, to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 73(1)(a) stipulates that the executive power of the Union shall extend 'to the matters with respect to which Parliament has power to make laws'. 'Union Public Services and all-India Services' are included in item 70 of the Union List (List I of the Seventh Schedule) enumerating the matters with respect to which Parliament has the exclusive power to make laws. The proviso to Article 309 of the Constitution makes it competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment, and the condition of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Parliament to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union. The inevitable sequitur from these constitutional provisions is that the President, acting directly or through officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the constituted service. The President (or the person directed by him) may, or, again, if he so chooses he may not, make rules, regulating the recruitment and conditions of service of persons appointed to sudi service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc., before a service may be constituted or a post created or filled. But if there is an Act of Parliament or a rule under the proviso to Article 309 on the matter, the executive power, under Articles 53 and 73, may not be exercised in a manner inconsistent with or contrary to. such Act or rule.'
(7) Part Xiv of the Constitution of India deals with the' services under the Union and the States. Recruitment and conditions of service of the persons serving the Union or State is to be regulated in the manner prescribed under Article 309 reading as under :-
'309: Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State : Provided that it shall competent for the President or such person as he may direct in the case of service and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct .in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'
This Article is an enabling provision which confers power on the appropriate Legislature. It may regulate recruitment or in other words appointment to public services and. posts. It may also regulate conditions of service applicable to those persons who have been so appointed to public services or posts. The power is conferred on the appropriate Legislature by virtue of Entry 70 of List-land Entry 41 of List-11 of the Seventh Schedule. It is a legislative power. The Article, however, does not impose any duty to legislate as is clear from the Proviso. The Proviso enables the President in case of services and posts in connection with the affairs of the Union or the Governor in case of services in connection with the affairs of the State or such person whom each may direct, to make rules to regulate the recruitment and conditions of service. Again Proviso to Article 309 does not make it obligatory to make rules regulating the recruitment and conditions of service. The Government can make appointments and regulate conditions of service in exercise of the executive power. In the absence of the recruitment rules appointments can be validly made under the general power of administration. There is a consensus of judicial opinion that the power conferred on the Legislature by Article 309 is a Legislative power and that the power conferred on the President or the Governor is an identical power, and likewise a legislative power. The Legislature has nut pasted any Act in this case. Only Rules have been notified in exercise of the powers conferred by Proviso to Article 309. The Rules made by the President are to have full effect, both prospectively and, retrospectively. Apart from the limitation laid down in Proviso to Article 309 that 'any rules so made shall have effect, subject to the provisions of any such Act', none other has been imposed. The Rules have to be given full effect for accomplishing the stated purpose. The rabbit of the operation of the Rules cannot be curtailed or cut down except by amendment of the Rules in the like manner i.e., by a notification duly made under Proviso to Article 309. The Rules cannot be amended or superseded by administrative instructions [See Sant Ram v. State of Rajasthan, : (1968)IILLJ830SC ]. If there are statutory Rules governing recruitment, then the Government must abide by that Rule audit cannot ignore it or act contrary to the Rules. 'It is hardly necessary to mention that if there is a statutory Rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that Rule or Act, 'as held in B. N.Nagarajan v State of Mysore, Air 1966 Sc 1944 The same view was reiterated by the Supreme Court in the case of 'Katyani Dayal' (supra) relied upon by the respondents.
(8) It is clear from the counter affidavit that the Indian Navy earlier adopted the then prevailing British system for manning the stores organisation by qualified civilian officers till the year 1955. In the year 1955, it was decided that the post of Director of Stores be tenable by a Service Officer or a Civilian Officer. The post of Director of Logistics Support earlier known as Director of Stores has been held by a Naval Officer ever since 22-3-1955, except for a short period from 16-2-1971 to 10-12-1971 when it was held by Shri Krishnamoorthy. There were no statutory Rules or an Act of the Legislature governing the recruitment to the various posts in the stores organisation till the year 1969. Recruitment Rules were notified in exercise of the powers conferred under the Proviso to Article 309 of the Constitution by S. R. O. 363 of 1969 dated 20-12-1969. The post of Director of Stores under the said Rules was required to be filled in by promotion from amongst Senior Naval Stores Officers/Naval Stores Officer with five years experience. The Government continued to appoint Service Officers but no challenge was made by any one. Under the Rules (of 1979). there is no provision providing for filling up the post of Director of Logistics Support from amongst any Service Officers. My attention has been invited to the 'Survey of India Class I Recruitment Rules, 1960' notified on July 1,1960 in exercise of the power conferred by the Proviso to Article 309. One of the methods of recruitment to Survey of India Class I Service is by appointment of Corps of Engineer Officers of the defense Ministry. Induction of Service. Officers is specifically provided and thus permissible there. The only method of recruitment provided in the Rules in this case is by promotion of a Joint Director Naval Stores Organisation with three years' service in the grade rendered after appointment thereto on regular basis. It does not provide the method of recruitment by 'induction of Service Officers' or 'transfer on deputation' or 'tenure appointment' by a Service Officer. The Rules give the classification and say that the post of Director of Logistics Support is a General Central Services, Group 'A', Gazetted, Non-Ministerial. The appointment to this post can only be made by the President or by the Competent authority in the name of the President.
(9) There are in existence the administrative sanctions from time to time conveying the sanction of the President to the continuance of the post of Director of Logistics Support. There is a further decision by the President that the post of Director of Logistics Support may be held by a Captain (E/L/S) or a Civilian. As I have already expressed in the absence of the. Rules appointments can be validly made under the general power of administration in the manner indicated by the exercise of executive power. Qualifications for the post can validly be laid down in the self same sanction order creating the service or post and filling it up accordingly to those qualifications. The said administrative sanctions can be given effect only in the absence of the Rules notified in exercise of the powers conferred by the Proviso to Article 309. The administrative sanction or executive decision cannot prevail over the Rules which are statutory in character. It is not that the Rules are silent or there are any gaps which could be filled in by executive instructions. The Rules lay down only one method of recruitment to the said post. Any other mode of appointment by necessary implication is excluded. The power of appointment given under the Rules which have the force of law, has to be exercised in the manner provided in the Rules.
(10) It is true that the creation of an office, public service or post has to be attributed to the exercise of Sovereign power of the State. They are matters covered in the domain of State Policy. The creation of posts or offices and their abolition are matters of service policy, administrative necessity or existences of circumstances. The decision to create is dependent on the necessity for the proper functioning of the Government and its own internal administration. It is related to the interest of and the needs of Governmental administration. Likewise the power to abolish a post is inherent in the very concept of governmental administration. To deny that power to the Government is to strike at the very root of proper public administration, [See K. Rajindran v. State of Tamil Nadu, : (1982)IILLJ259SC ]. The Government is also free to make or not to make appointments to services or posts. There is no compulsion. It would depend on administrative necessity. After the creation of the post of Director of Logistics Support, Rules have been framed laying down the method of recruitment to that post. If there is an Act of Parliament or a rule under the proviso to Article 309 on the matter, the executive power, under Articles 53 and 73, may not be exercised in a manner inconsistent with or contrary to such Act or rule. [See Katyani Dayal (supra)]. The necessity and justification to fill in the post is pleaded by the respondents but by a Service Officer whose appointment is clearly in contravention of the statutory Rules, thus entitled to be struck down.
(11) For the above reason the writ petition succeeds. It is directed that the impugned administrative sanctions in so far as they direct that the post of Director of Logistics Support is. tenable also by a Service Officer cannot prevail over the Statutory Rules and is thus void. It is also declared that the appointment of respondent No. 4 to the post of Director of Logistics Support is illegal. Respondent No. 4, henceforth, is restrained from holding the post of Director of Logistics Support. On the facts and circumstances of the case I leave the parties to bear their own costs.